The case of suspended school student, freedom of expression.
by James Kilpatrick
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The facts were not in dispute, though you would never know this from the chief's opinion. Let me summarize: On Jan. 24, 2002, the Olympic Torch was to pass through Juneau, Alaska, on its way to the Olympic Games. As the parade passed by Juneau-Douglas High School, a 19-year-old student, Joseph Frederick, unfurled a 14-foot banner that bore a strange device. The school's principal rushed across the street, seized the banner and suspended the student Naturally, he sued. He won in the ninth Circuit, but on Monday the Supreme Court voted 5-4, more or less, to reverse.
It may be useful to look at the facts the chief justice so remarkably overlooked or rearranged. In his very first sentence, Roberts wrongly said: "At a school-sanctioned and school-supervised event, a high school principal saw ..."
How's that again? At this public event, the high school sanctioned nothing and supervised very little. The parade was sponsored by the Coca-Cola bottling plant in Juneau and by several other private companies and private citizens. The school turned out a small band, but that was the beginning and end of the school's involvement.
The chief justice would not let it go. Eleven times he got it wrong. He said the torch-bearing parade was like a "class trip." This was palpable nonsense — high-octane nonsense, but nonsense nonetheless. This was never a school function. The parade never touched school property.
One more point of fact: The chief justice said the Olympic torchbearers were to pass by the school "while school was in session." But this was not so. Not a single class was in session as the torch passed by. The students, including young Joe Frederick, were free to watch the parade, throw snowballs or stay home, as they wished.
What was the lad's offense? On his own time, at his own expense, in his own household, he and his buddies had prepared a portable sign. This was the message on the streamer they attempted to unfurl: BONG HITS 4 JESUS.
"The message on Frederick's banner is cryptic," said the chief justice. He was not sure what to make of it. It was no doubt offensive to some, perhaps amusing to others. It was obviously not actionably "obscene." Ah, but it plausibly could advocate the use of illegal drugs. Think of that! The chief was not amused.
Having garbled the facts, the chief justice proceeded to garble the law. To support his cockamamie theory of the case, he cited to three famous cases of student speech and the First Amendment. These are the Tinker case of 1969, the Fraser case of 1986 and the Kuhlmeier case of 1988. But his cites were irrelevant. Those cases clearly involved student speech within a public school , where classes were in session and the principal's authority was unquestioned.
Roberts' unconvincing opinion for the court was considerably undermined by the pallid enthusiasm of his colleagues. Justice Scalia stayed resolutely mum. Justice Thomas concurred in a single tight-lipped sentence and then wandered off with a treatise on the original meaning of the First Amendment.
Justice Alito, with Justice Kennedy concurring, went to bed with the chief justice's opinion, but they plainly hated themselves in the morning. Roberts' opinion, they emphasized, "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue."
Justice Breyer, dissenting in part, sensibly described the court's opinion as "unwise and unnecessary." Then, as he so often does, Justice Breyer wandered aimlessly off.
It remains to be said only that Justice John Paul Stevens earned a pearl in his crown in heaven. Joined by Justices Souter and Ginsburg, he wrote that Roberts' opinion for the court "does serious violence to the First Amendment." Its approach is "indefensible." Amen, brother!
On April 20, 1653, Oliver Cromwell spoke famously to the famous Rump Parliament. He could have been speaking to the Roberts Court: "You have sat too long here for any good you have been doing lately. Depart, I say, and let us have done with you. In the name of God, go!
(Letters to Mr. Kilpatrick should be sent by e-mail to firstname.lastname@example.org.)
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