By Selwyn Duke

Last week the Supreme court handed down three free speech rulings that find favor with conservatives.  One of them is Morse et al. v. Frederick,
a case involving the free speech rights of students. At issue is a five
year old incident wherein a Juneau-Douglas High School senior named Joe
Frederick raised a 14-foot banner stating “Bong Hits 4 Jesus” and was
subsequently suspended for “drug speech” by then school principal
Deborah Morse. Writing for the majority in a five to four decision in
favor of the school, Chief Justice John Roberts reasoned that the First
Amendment should not be applied in this case because the student was
encouraging drug use.

While I agree with the principal’s actions and take solace in
the knowledge that educators’ hands won’t be further tied, the Supreme
Court’s ruling does nothing to address what is the underlying problem.
In fact, with the convoluted logic displayed by virtually all members
of the court, it’s hard to find much to applaud in this judgement.

The real issue here extends far beyond this one case and harks
back to a precedent set in 1969 in the Tinker v. Des Moines ruling,
which divined from the Constitution a right to free speech in schools.
Upon issuance of that decision the court stated,

“It can hardly be argued that either students or teachers shed
their constitutional rights to freedom of speech or expression at the
schoolhouse gate.”

Really? What can hardly be argued is that the donning of a
black robe confers intelligence, wisdom or even much useful knowledge
upon the wearer.

The truth here can be found in one of the few bright spots in
this case. Writing in his concurrence, Justice Clarence Thomas drove to
the heart of the matter in saying,

“. . . it cannot seriously be suggested that the First
Amendment ‘freedom of speech’ encompasses a student’s right to speak in
public schools.”

Leftists can argue till they’re blue in the face, but the truth
is that students do not have freedom of speech in school. Why, we can
spew profanity at others on the street – in fact, some people where I
grew up in NYC consider it a pastime – but a student may be punished if
he directs same at a teacher or peer. I also have to wonder if the
left’s highly principled stand in defense of free speech would be
maintained in the face of a student given to Nazi and white supremacist
rhetoric.

The fact is that we don’t ascribe to minors an adult set of
rights. Minors may not buy alcohol or cigarettes, drive before a
certain age, join the military, get married or enter into other kinds
of legal contracts. Most tellingly, while enshrined in the Constitution
is, “A well regulated militia being necessary to the security of a free
State, the right of the People to keep and bear arms shall not be
infringed,” there isn’t much clamor to extend this right to minors.

In ignoring this, the more conservative members of the court
are guilty of the same reasoning, if not the same sanctimony, as the
left. Virtually no one supports granting “free speech” to students;
that is, free speech properly understood. As I’ve said
before, freedom of speech is but a facade unless the guarantee protects
even the most odious, most offensive, most unpopular speech of all.
Popular sentiments require no legal protection, as their popularity is
protection enough. Thus, to draw the distinctions we already have – oh,
such as proscribing “hate speech” on school grounds (remember, we may
spew whatever hatred we wish, even the faux variety the thought police
hate so much) – is to tacitly acknowledge that there is no free speech
in that arena. (Note: This isn’t a violation of the Constitution
because the original intent of its framers is what rightly governs the
document’s application, and it’s unreasonable to believe these 18th
century men would have granted children the right to be sassy brats.)

Schools also are not alone as governmental institutions that
prohibit free speech. Most obviously, military personnel are quite
limited in the use of the tongue, and police departments come to mind
as well. In fact, with sexual harassment and hate speech codes becoming
the stuff of bureaucratic rubric, it may be hard to find an American
governmental entity that affords its workers that most important
American freedom. And while I definitely dislike the way this principle
of censorship is applied by our Orwellian puppeteers, the principle
itself is sound. Only the most delusional egalitarian fails to
understand that for a society to function properly, just hierarchies
must be operative and respected. Thus, when the Black Robes turn around
and speak of protecting what does not exist, students’ “right to free
speech,” they illustrate their philosophical bankruptcy.

A mature approach begins with the understanding that it isn’t
a question of whether students will be muzzled, but only what kind of
filter that muzzle will be fitted with. This begs the next question:
Who should make this judgement? Parents should, through their local
school boards; as with obscenity, local community standards should
apply. After all, who should be the arbiter of the rules governing your
schools, you or some Black Robes in Washington?

The degree of irrationality exhibited by the court becomes
truly evident when you consider that after accepting the supposition
that the First Amendment applies to students, it turns about and states
that this constitutional protection doesn’t apply to their advocacy of
drug use. But why not? After all, many among us encourage drug use –
with the protection of the First Amendment. Are there two first
amendments, one for schools and another for everyone else?

What this boils down to is that, after all the intellectual
contortions and philoso-babble, the court is saying something very
simple: Students shouldn’t be allowed to say certain things. It’s just
that most of our jurists are too dull to realize this.

The truth is that the Black Robes are once again casting
themselves as men for all seasons, not just as those well versed in the
law but as experts in the area of everything. They are anything but,
however, and this is evident in their own lack of consensus; not only
was the high court divided in this matter, the ninth circuit court of
appeals had previously ruled contrarily. Then there is the fact that
the court upheld students’ “right” to religious and political
expression. Okay, then, what if Master Frederick had claimed that his
message was not pro-drug but anti-religion?

In point of fact, what he did claim was that he was just
trying to raise a ruckus. Principal Morse certainly didn’t accept this
explanation, and maybe she was right, maybe she was wrong, but is the
court better suited to discern such things? Could they say definitively
that the message wasn’t designed to create a ruckus when it was
certainly controversial or that it wasn’t a religious statement despite
the use of Jesus’ name? Our courts have come to define hubris; in the
past they told us some religious symbols aren’t religious in nature;
will they now tell us that some religious motivations are not? Ah, the
Black Robes, they aren’t just constitutional scholars (if only),
they’re also theologians and authorities on ruckuses.

What’s so tragic about this manifestation of judicial
imperialism is that it’s part and parcel of a destructive, wider
problem: The undermining of just hierarchies and discipline through an
incremental neutering of authority figures. Our troops in Iraq are
handcuffed by ridiculously stringent rules of engagement and must worry
about criminal prosecution if they run afoul of them; our police are in
a similar predicament. Parents hands are partially tied by a government
that tells them how they may discipline their children, and the threat
of social services intrusion looms large. And teachers are rendered
impotent by lawsuit-loving parents and legal prohibitions. Understand,
though, that power stripped from the people doesn’t disappear into a
black hole of permissiveness; no, like wealth, it’s merely transferred.
In this case it’s placed in the imperious hands of the Black Robes,
those higher authorities that fancy themselves to be the highest
authority.

You know, when I sniff the air downwind of the Black Robes, I
sense the stench of ego. For they aren’t content to be governmental umpires.
Flushed with power and illusions about their own intellectualism and
infallibility, many judges’ master status follows a certain
evolutionary path: Jurist, social activist, social-engineer, demigod .
. . you can finish the progression. But I wonder if the people’s
obeisance is as boundless as Black Robes may fancy. For how long will
we continue to respect the rule of law when that law is handed down by
those who believe in the law of their rule? After all, when Black Robes
cease abiding by the supreme law of the land, the Constitution, we are
then governed not by the rule of law but the rule of lawyers.

So, I have a word of caution for the Black Robes. One day you
will go to the well once too often, and then maybe, just perhaps,
people will recognize what surrounds you as more miasma than mystique.
Perhaps then, realizing our law has become a mere toy of judges who
would be kings and that bearing the title “Your Honor” doesn’t confer
honor, citizens will echo the 150 year old sentiments of President
Andrew Jackson. Knowing the court was as bereft of coercive power as it
was of the intellectual variety, his response to an unfavorable court
ruling was simple: “They have made the decision, now let them enforce
it.”