Clinton Prosecutor Now Targeting Free Speech

Virchull tells us about a case the Supreme Court has agreed to hear, in which former special prosecutor Kenneth Starr will take the side of an Alaska school board against a student who displayed a rude banner off school property. The banner read "Bong Hits 4 Jesus" and it got the student suspended. He and his parents sued the school board for violating his First Amendment rights. The case is nuanced: while the student did not display the banner on school property, he did do so during a school function. Starr is said to be arguing the case for free.

Comments

U.S. Supreme Court already decided this

[ReallyEvilCanine]

Hustler Magazine, Inc. et al. v. Jerry Falwell
No. 86-1278
SUPREME COURT OF THE UNITED STATES
485 U.S. 46
Argued December 2, 1987, decided February 24, 1988

In Garrison v. Louisiana, 379 U. S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill-will his expression was protected by the First Amendment:

"Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth." Id., at 73.

Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.

And, as we stated in FCC v. Pacifica Foundation, 438 U. S. 726 (1978):

"[T]he fact that society may find speech offensive is not a sufficient reason for sup pressing it. Indeed, if it is the speaker's opinion that gives offense, that con sequence is a reason for according it constitutional protection. [56] For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." Id., at 745-746.

See also Street v. New York, 394 U. S. 576, 592 (1969) ("It is firmly settled that . . . the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers").

It was an 8:0 decision written by Rehnquist, and agreed to by Scalia, Kennedy and O'Connor. "Bong Hits 4 Jesus" is hardly "fighting words" which could lead to an incitement to public disorder so how the hell does Starr think he can attack this?

Re:Some thoughts

[qazwart]

Did you read anything about this case?

According to the news reports: Some kids left the school property and went to local eateries, some kids horsed around, some kids went home, etc. Teachers did not line students up and escort them to the street where the torch ceremony was taking place. Does that sound like a "school sponsored event"? Apparently, there was very little school supervision. It sounds more like school was suspended to allow kids to watch the event.

Schools also have little right to ban free speech even inside a school. Tinker vs. Des Moines stated that students do not "shed their constitutional rights when they enter the schoolhouse door." And, apparently in this case, Fredrick, the student who was suspended, hadn't even entered school property that day.

There is a similar case, Bethel School District vs. Fraser. In this case, a student gave a speech full of sexual innuendoes at a school assembly. The Supreme Court ruled against the student because the assembly was a school sponsored event and the school had a policy where "[c]onduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." That assembly was on school grounds, students were strictly supervised and were required to either attend the assembly or go to study hall. Compare this to this event where classes were merely let out, and students could choose to go watch the parade or go elsewhere.

I am also against public school uniforms for many of the same reasons. Schools love uniforms because it shows "they're doing something" while not costing the school a penny. I've successfully fought several school uniform cases. It violates freedom of religion where students are required to wear clothing that violates their religion's dress code. It violates freedom of speech where uniforms prohibit armbands. But, I've been mainly successful because I traced money changing hands between administrators and school uniform companies. Usually, school uniform requirements are silently dropped in order to avoid embarrassment. Students pick up on this change of policy with in a week.

I find that your attitude rather distressing. Schools when given absolute power over student lives abuse it. In the Georgetown Independent School District in Texas, the principal decided to ban Star of Davids. She said they were a symbol of Satanism. Do you believe that is constitutional? In Detroit, some schools tried to crack down on Moslem women wearing head scarfs. Is that constitutional? You also seem to believe that schools may simply flog students for almost any reason. Do you really believe that?

I also find your argument that a school is just the building disingenuous. Do you believe when a news report says "The White House says..." that the building is talking? When we talk about schools, we are talking about the administrators who run the schools.

We need to actively challenge school administrators more. Too many students get randomly suspended because administrators simply want to show they're "in control" and won't tolerate any dissent. School administrators sometimes suspend students simply to put the blame elsewhere. I've had cases where students were suspended because they were involved in a school sponsored activity that later proved to be embarrassing. (like the laser printer episode).

The problem is that most administrators know they can get away with it because they will simply suspend a student for 3 to 10 days. By the time the student goes through the appeals process and into a local court, the suspension is over and the damage has been done. At that point, most students simply want to get back on with their lives.