Bush team wrong on free speech issue

The Bush administration has been wrong about nearly everything in the past six years.

President Bush sold the Iraq war on lies. He still stubbornly refuses to withdraw from Iraq. He condones torture and outsourcing of torture. He violates the Constitution. The Bushites fire U.S. attorneys who do not hew to the White House line. They support mountaintop mining in violation of the Clean Water Act. And, among many, many other daily outrages. Bush puts gross incompetents in key positions.

So it is hardly surprising that the Bushites are wrong again on a student free speech issue.

The case, argued before the Supreme Court recently, deals with a high school student who displayed a sign that read, “Bong Hits 4 Jesus,” at a 2002 Olympic torch relay in Juneau, Alaska. (Bong hits is slang for using marijuana.)

The 9^th U.S. Circuit Court of Appeals correctly ruled that the First Amendment rights of the student, Joseph Frederick, were violated. It cited Tinker as precedent, a 1969 decision declaring that wearing black armbands to school to protest the Vietnam War was symbolic speech deserving constitutional protection.

The opinion by Justice Abe Fortas said: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Fortas cited the 1943 ruling in which the court struck down a compulsory flag salute statute in West Virginia: “That they (public schools) are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

Fortas noted that “state-operated schools may not be enclaves of totalitarianism,” which they too often are, and proved to be in the Alaska high school case. He added: “Students may not be regarded as closed-circuit recipients of only that which the state chooses to communicate.”

The government is trying to make it a drug case, not a free speech matter. It argued, in effect, that the war on drugs takes priority over free speech rights. Kenneth Starr, arguing for the government, said: “Illegal drugs and the glorification of the drug culture are profoundly serious problems for the nation.”

Please. A harmless sign glorifies drug usage? The subterfuge is transparent.

Douglas Mertz, who argued the case for the American Civil Liberties Union, was emphatic: “This is not a case about drugs or drug policy. This case is about freedom of speech and teaching our young people the importance of free speech.”

The 9^th circuit is the most liberal court in the land so it would not be surprising if it is reversed by the reactionary Supreme Court. Indications of that possibility cropped up during oral argument.

Chief Justice Roberts said schools need not tolerate student expression that undermines their educational mission. He asked: “Why is it that the classroom ought to be a forum for political debate simply because the students want to put it on their agenda?”

Answer: because it is essential that every public affairs issue be debated. High schoolers are no exception. Besides, the sign was not displayed in the classroom.

As attorney Mertz pointed out, schools that inculcate an antidrug message must permit students to offer opposing views. He noted that in an open forum, such as the torch parade, it is wrong to tell students that they “may not mention this subject.”

Just as the black armbands in Tinker were not disruptive of class, so the sign at the parade disrupted nothing.

Nevertheless, Justice Kennedy argued that the sign was “completely disruptive” of the school’s antidrug message. Nonsense. As a letter writer in the New York Times put it: “If a competing thought is disruptive of a fundamentally propagandistic message, that is precisely what the First Amendment was intended to promote and protect.”

Even an organization from the religious right, the American Center for Law and Justice, warns that public schools “face a constant temptation to impose a suffocating blanket of political correctness on the educational atmosphere.”

Justice Brennan, dissenting in another student free speech case in 1988, said that schools cannot act as “ ‘thought police,’ stifling discussion of all but state-approved topics.”

Some highly intelligent people of the Right, including the modern guru of conservatism, Bill Buckley, argue for the legalization of all drugs--not just marijuana.

Buckley is right. But even if he is wrong, the student message should be allowed in the marketplace of ideas.