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The Limits of Free Speech in Schools
August 28, 2006 9:46 AM   Subscribe

From the guy who brought you the Whitewater scandal and the impeachment of President Clinton for lying about oval antics in the Oral Office, a legal push to make the Supreme Court just say no to "Bong Hits 4 Jesus." Ken Starr's petition to the Court [PDF] makes clear that Starr believes this is no laughing matter, but a chance for the Court to make a landmark ruling that will give school adminstrators the power to limit student speech: "This case presents the Court with a much-needed opportunity to resolve a sharp conflict among federal courts (and to eliminate confusion on the part of school boards, administrators, teachers, and students) over whether the First Amendment permits regulation of student speech when such speech is advocating or making light of illegal substances."
posted by digaman (131 comments total)

 
In a country where teenagers learn that random drug tests, censored newspapers and locker searches are perfectly legal, the outcome of this case seems sadly predictable.
posted by Blazecock Pileon at 9:51 AM on August 28, 2006



Great. Now there's someone trying to make humor illegal. Ken Starr should be drummed out of the country.
giving him a ride is optional, but he's got to be off our land-mass, soonest.
posted by Kirth Gerson at 9:55 AM on August 28, 2006


So *that's* why all those Olympians did all that dope!
posted by notswedish at 9:56 AM on August 28, 2006


Ken Starr is simply not a fun person at all.
posted by PHINC at 9:56 AM on August 28, 2006


Heaven forbid any of these kids start talking about "V for Vendetta" in the lunch room.
posted by digaman at 9:56 AM on August 28, 2006


Kenneth Starr really needs to get laid.
posted by CheeseburgerBrown at 9:58 AM on August 28, 2006


(a) What does Clinton have to do with this story?
(b) What does it matter from a legal perspective that Ken Starr was hired as counsel to argue this case?
(c) How is it a landmark ruling when there is clear and direct Supreme Court precedent in this matter?
(d) Wouldn't it be wise to link the the lower court ruling and possibly wait to see how the Supremes handle this?
posted by dios at 9:59 AM on August 28, 2006


Good to know that the asshole is as relentless as ever.
posted by blucevalo at 9:59 AM on August 28, 2006 [1 favorite]




A bong is a popular device used to smoke marijuana.
posted by damn dirty ape at 10:00 AM on August 28, 2006 [2 favorites]


Uh. Confusion? I always thought Tinker was pretty clear on this kind of stuff and it was authoritarian asshats who get their jollies from bossing around kids that mucked things up.
posted by Skwirl at 10:00 AM on August 28, 2006


Good to know that the asshole is as relentless as ever.

Starr or dios?
posted by matteo at 10:01 AM on August 28, 2006 [1 favorite]


But is all behavior in school protected by the first amendment? Does that include talking out of turn in class? If you're caught cheating on a test, do you get a trial by jury?
posted by QuietDesperation at 10:03 AM on August 28, 2006


Dios:

Feel free to provide the links you criticize this FPP for not including. The Internet is just marvelous that way.

(c) How is it a landmark ruling when there is clear and direct Supreme Court precedent in this matter?

Perhaps you could ask Starr, whose quote I provided in the FPP about how this "case presents the Court with a much-needed opportunity to resolve a sharp conflict" between the pressing need to discourage illegal drug use and students' claims that the US Constitution also applies to them.
posted by digaman at 10:05 AM on August 28, 2006


Uh. Confusion? I always thought Tinker was pretty clear on this kind of stuff.
posted by Skwirl at 12:00 PM CST on August 28


That's kind of the point of this Appeal. Tinker is not a final ruling that permits all discussion in school, if that is what you are suggesting. (Most people don't know anything about Tinker beyond the "don't shed First Amendment rights at the school house door.") Tinker does allow limitations on speech. As do the later (and perhpas more applicable) cases of Kuhlmeier and Fraser. Saying "Tinker" doesn't answer the question. Which is why it would be nice to have had the lower court's opinion linked to determine what the appealed decision said with regards to Kuhlmeier and Fraser.
posted by dios at 10:05 AM on August 28, 2006


A larger problem is that this stuff teaches kids not only not to say certain things for fear of punishment, but not to think them. A generation grows up to expect punitive measures for literally telling jokes. And we wonder why so many Americans are happy to give up civil liberties today for vague promises of "security" tomorrow — the behavioral conditioning starts young.
posted by Blazecock Pileon at 10:08 AM on August 28, 2006 [1 favorite]


(c) How is it a landmark ruling when there is clear and direct Supreme Court precedent in this matter?

Perhaps you could ask Starr, whose quote I provided in the FPP about how this "case presents the Court with a much-needed opportunity to resolve a sharp conflict" between the pressing need to discourage illegal drug use and students' claims that the US Constitution also applies to them.
posted by digaman at 12:05 PM CST on August 28


Starr didn't say landmark ruling. You did. You are suggesting that there is no grounds for a school to limit speech based on content (or something to that effect). Starr was just saying that there was need of guidance because of divergence among the lower courts in applying Supreme Court precedent.

This is not likely to be a landmark ruling, if the Court issues an opinion, because all the Court would be doing is applying pre-existing precedent regarding limitations on speech in school based on its content.

And you didn't address question (a) or (b). What was the point of that other than to try to smear the case by appealing to some sort of political grievance?
posted by dios at 10:08 AM on August 28, 2006


(a) What does Clinton have to do with this story?

The consanguinuity is one of theme: pouring massive resources into proving a point many would argue is vacuous.

Consider: Clinton was up for impeachment for lying to the America public about getting his horn honked. On its face this may seem worth pursuing, but it does seem absurd when compared to some of the truth-skirting faux pas committed by the current administration.

These things are relative.

While it may be true that trying to get attention for marijuana smoking isn't terribly mature or constructive, I'm pretty sure there are more pressing issues facing society.
posted by CheeseburgerBrown at 10:09 AM on August 28, 2006


So this happened in January of 2002. Even if the kid was in his freshman year, he graduated last May. I'm certain he no longer cares about the ten-day vacation he got way back then. It's too bad the school district still does.
posted by Plutor at 10:13 AM on August 28, 2006


(b) What does it matter from a legal perspective that Ken Starr was hired as counsel to argue this case?

He was not hired. He is doing it for free. That tells us a great deal about what is important to Ken Starr.
posted by flarbuse at 10:17 AM on August 28, 2006


Dios, feel free to substitute Starr's phrase "much-needed" ruling if you prefer that to "landmark."

And yes, as Cheeseburger pointed out, there's an M.O. apparent here -- leveraging crucial resources to bring the law down hard on offenses that some would consider trivial.
posted by digaman at 10:18 AM on August 28, 2006 [1 favorite]


this "case presents the Court with a much-needed opportunity to resolve a sharp conflict"

That's pretty much boilerplate language. You can't get ot the Supreme Court unless there's a conflict between circuit courts or between state and federal law.

And Ken Starr happens to be an excellent lawyer, who has worked on dozens of cases since whitewater, if not hundreds. He was even a co-counsel with Johnnie Cochran in a civil rights matter, if I recall correctly.

And, shocker, minors don't have the same rights as adults. Among other things, minors are forced to go to school. It only stands to reason if you can force someone to attend school, you can probably limit what they can say and do when they are there.
posted by Pastabagel at 10:24 AM on August 28, 2006


Right, Pastabagel. And the pressing need to get this case before the Supreme Court is....
posted by digaman at 10:26 AM on August 28, 2006


It only stands to reason if you can force someone to attend school, you can probably limit what they can say and do when they are there.

This somehow applies to off-campus activities unconnected formally to the school? What's the cut-off? If it's "within view of the school" could he plead bad eyesight?
posted by CheeseburgerBrown at 10:27 AM on August 28, 2006


Hey is this in the print version of the WSJ? I'm having a hard time finding it.
posted by geoff. at 10:32 AM on August 28, 2006


The WSJ URL contains the word "blogs," so perhaps not.
posted by digaman at 10:35 AM on August 28, 2006


IANAL, but I gotta largely agree with the ninth (though I think the bit about holding the principal personally responsible's a bit much...)

Whilst I agree that schools should have some leeway when it comes to suppressing pro-drugs messages in school as disruptive, there's a bit of a difference between holding up a banner off school property at an event the school has given pupils permission to observe and handing out pro-drugs leaflets in a classroom.
posted by kaemaril at 10:38 AM on August 28, 2006


Oh damn, you're right. Well there goes cutting it out and highlighting the definition of bong hit and putting it on the office freezer. The effect is not the same when printed out. This has got to be the only paper in America where a majority of its readers have no idea what a bong hit is.
posted by geoff. at 10:39 AM on August 28, 2006


i love how in the photo of the banner, it looks like 'DONG HITS 4 JESUS'.
posted by Miles Long at 10:41 AM on August 28, 2006


Didn't Ken Starr recently die?

Oh wait, that was Ken Lay.

I can't keep all these losers straight! :>
posted by bim at 10:44 AM on August 28, 2006


According to the petition this was Alaska, or did I misread?

Anywho ...interestingly enough, if this is Alaska then medical use of marijuana is apparently legal (at least according to this).
So it'd be open for interpretation whether this was advocating illegal drug use or not, since presumably some people using the stuff medically might conceivably make use of a bong :)
posted by kaemaril at 10:54 AM on August 28, 2006


Right, Pastabagel. And the pressing need to get this case before the Supreme Court is....
posted by digaman at 1:26 PM EST on August 28 [+] [!]


..to resolve that conflict in the law? I doubt you get cases on this law that are pursued through the Federal Courts, because the plaintiffs would be teenagers without resources to push it that far. When one emerges that doesn't have other grounds that are easier to resolve, you run with it.

And you could say the same thing about any supreme court decision. Someone had to bring it. The issues are obviously important to whoever raises them before the court. The school probably thinks it's important to be able to have the authority to control the off-campus activity of its students if that off-campus activity is directed at the school.

Unlike what CheeseburgerBrown said, the issue is probably not just activity "within view of the school", it's activity that is likely to be directed at the school from off campus.
posted by Pastabagel at 10:59 AM on August 28, 2006


"this "case presents the Court with a much-needed opportunity to resolve a sharp conflict" between the pressing need to discourage illegal drug use and students' claims that the US Constitution also applies to them."


What a nation of pansies we've become. Choosing to weaken our constitutional protections over the reefer???
posted by stenseng at 11:01 AM on August 28, 2006


When humor is made illegal, only criminals will tell jokes.

Is it not equally sacreligious to say you are "high on Jesus?"
posted by fourcheesemac at 11:02 AM on August 28, 2006


The school probably thinks it's important to be able to have the authority to control the off-campus activity of its students if that off-campus activity is directed at the school.
That's a fun argument when you extend it to the web ...
posted by kaemaril at 11:07 AM on August 28, 2006


Ken Starr: Douchebag of Liberty.
posted by StrasbourgSecaucus at 11:12 AM on August 28, 2006


That's a fun argument when you extend it to the web ...

Don't worry, we're already cleansing the web.
posted by Blazecock Pileon at 11:12 AM on August 28, 2006


dios writes "all the Court would be doing is applying pre-existing precedent regarding limitations on speech in school based on its content."

Thanks for joining us, Dios.

In the future, before submitting a comment, it's always a good idea to at least skim the article. Reading this might've helped you to avoid your unfortunate gaffe:
Should the court grant the petition, the outcome could hinge on whether the banner disrupted the educational process, whether watching the relay was a school-sponsored event, and whether Mr. Frederick — who had yet to enter school property that morning because his car had been stuck in the snow — was officially on campus.
This incident didn't happen on school grounds.
posted by mullingitover at 11:14 AM on August 28, 2006


That's a fun argument when you extend it to the web ...
posted by kaemaril at 2:07 PM EST on August 28 [+] [!]


Hard cases make bad law. The web is different. Is a hs students posts something about drug use on mefi from their own home cputer, it's clearly out of the schools control. If the student posts to the high schools message board, then it's clearly within the school's control.

Let me put it this way. If it seems like a easy loophole, it's probably not a loophole. Read the petition. The school organized the crowd to view the event. The kid who unfulred the banner was supposed to be with his class watching the event from the other side of the street. Instead, he cut. Then he took the banner to the front of the crowd where the students would obviously see it.

And if you think the Ninth Circuit decided the case correctly, you should know that they decided it based on their interpretation that Supreme Court precedent only allowed schools to circumscribe student that constituted "sexual speech [that] can be expected to stimulate disorder among those new to adult hormones".
posted by Pastabagel at 11:15 AM on August 28, 2006


In the future, before submitting a comment, it's always a good idea to at least skim the article. Reading this might've helped you to avoid your unfortunate gaffe:
posted by mullingitover at 1:14 PM CST on August 28


Seriously. Kiss my ass. If you think anything you just said shows that I didn't read the articles (which I did... and I actually read the fucking brief unlike you.... if you think my comment was off base) then you are clearly mentally equipped or mature enough to engage in a discussion of this point. Your comment is off base and utter bullshit. So until you can at least grasp what I am saying, don't bother making snarky bullshit comments like that.
posted by dios at 11:18 AM on August 28, 2006 [1 favorite]




This incident didn't happen on school grounds.
posted by mullingitover at 2:14 PM EST on August 28 [+] [!]


goddamn preview...

dios is correct in a broader sense. The incident happened in school - a school sanctioned event that was adjacent to school grounds and that all students were required to attend and view from school property. In you are on a class trip, you are still in school.
posted by Pastabagel at 11:19 AM on August 28, 2006


Forgetting to type the word "not"..... priceless.
posted by dios at 11:19 AM on August 28, 2006


The kid who unfulred the banner was supposed to be with his class watching the event from the other side of the street. Instead, he cut.

The article says he never even made it to school that day because his car was stuck in the snow. You seem to fail at reading.
posted by StrasbourgSecaucus at 11:20 AM on August 28, 2006


Geez, whatever happened to "Double Secret Probation" instead of all this Supreme Court crap...
posted by Eekacat at 11:22 AM on August 28, 2006


Was their problem with "Bong hits" or "4 Jesus"?

Hmm, I wonder...
posted by triolus at 11:22 AM on August 28, 2006


Well, you actually failed at reading the brief.

Begin at page 5 middle paragraph, through page 6, paragraph #3 and beyond. He was across the street from the school he attended.
posted by Pastabagel at 11:25 AM on August 28, 2006


pastabagel:Let me put it this way. If it seems like a easy loophole, it's probably not a loophole. Read the petition.

Actually, I did read the petition.
I also pointed out an (extremely tenuous) argument could be made that this did not promote illegal drug use.

The kid never made it to school, the 'protest' was not on school grounds, and to suggest that looking out your window to see a poster saying something the school doesn't like is disruptive is ridiculous.

Further, if the Ms. Morse believes she can censor this why shouldn't she take a similar position on websites? 'Sure, the website's off campus, but it's viewable during school hours and it's disrupting our anti-drug message. Why shouldn't we insist the kid delete his website?' ... I bet that would sound reasonable to some people.
posted by kaemaril at 11:30 AM on August 28, 2006


the Ms. Morse? D'oh! I meant 'the principal, Ms. Morse'.
posted by kaemaril at 11:31 AM on August 28, 2006


Pastabagel, I notice a trope in these posts that has become quite common in discussions of issues like this in the Bush Era. The discussion starts revolving around small points like, "Was this kid actually in the school building? Or across the street? Was it a 'school sanctioned event'?" Rather than addressing the elephant in the room: a relatively trivial situation (a sophomoric joke, in this case) being exploited by GOP tools to pass new laws that further restrict civil liberties.

Granted, at the Supreme Court level, the discussion must turn on these technical points. That's lawmaking, amen. But outside the courtroom, it seems fine to ask a more basic question, like why Mr. Starr believes that the kid's banner presented such a clear danger to the student body that this case is worthy of Supreme Court consideration. It seems clear that Starr is hoping that the Court's decision will establish a precedent to limit other kinds of speech by students than jokey banners. In his quote in the FPP, Starr practically says so himself.

I find that much more interesting than whether or not the kid was standing across the street or whatnot. But I'm not a lawyer.
posted by digaman at 11:37 AM on August 28, 2006


The kid never made it to school, the 'protest' was not on school grounds, and to suggest that looking out your window to see a poster saying something the school doesn't like is disruptive is ridiculous.
posted by kaemaril at 1:30 PM CST on August 28


The Ninth Circuit (which ruled on behalf of the child) said you were wrong on all of these points.
The court of appeals found that the incident occurred while Frederick was a student and school was in session and that, accordingly, the case was to be resolved by applying “student speech” doctrine under Tinker, Fraser, and Kuhlmeier.7 App. 1a, 5a-6a. The court further assumed that Principal Morse correctly interpreted the phrase “BONG HITS 4 JESUS” as “express[ing] a positive sentiment about marijuana use.” App. 6a-7a. The panel ruled, however, that the district court incorrectly applied the “plainly offensive” standard from Fraser.
The issue on appeal is whether a message about illegal substances falls within the ability of a school to prevent the display on disruption grounds. The question is not whether the school can regulate speech (they clearly can). The question is not whether they can limit speech off campus (they clearly can). The question is not whether they can prevent speech on the basis that it is disruptive (they clearly can). The actual content of this speech is irrelevant. It could say "Hate Molly!" or "Eat a Fetus Today!" That doesn't matter. This is about defining the boundaries. Which is why its not a "landmark" case or anything of the sort. This is about defining the outer-boundaries of an already extant prinicple.

There is another issue on appeal, but that involves an understanding of the law and something beyond "free speech: absolute or not" and, as such, is noticably absent from the dialogue here.
posted by dios at 11:40 AM on August 28, 2006


a relatively trivial situation (a sophomoric joke, in this case) being exploited by GOP tools to pass new laws that further restrict civil liberties.

If that is what you think is going on here, then I can see why this doesn't fit into some broader picture of the development of constitutional law for you.

Would it really make a difference to you if there some other attorney than Ken Starr on this case?
posted by dios at 11:42 AM on August 28, 2006


Bongs are bad. Just ask Tommy Chong. Or Dick Cheney's Secret Service detail.
posted by homunculus at 11:46 AM on August 28, 2006


No, dios, it wouldn't. But surely there's no reason to ignore the fact that the lawyer in question is Starr, who has proven so useful to the GOP in the past.
posted by digaman at 11:47 AM on August 28, 2006


The kid never made it to school, the 'protest' was not on school grounds, and to suggest that looking out your window to see a poster saying something the school doesn't like is disruptive is ridiculous.

I believe I shall take this opportunity to go mad.

They weren't looking out the window. They were "in front of the school, either on campus or lined along either side of the street" (page 5, pg 15 of pdf). The kid was "on the sidewalk opposite the campus".

He was at the school. The only reason he didn't make it to class is because he didn't walk across the fucking street to join his classmates. Get it?

But please continue to misconstrue and overgeneralize the facts some more because I have some top shelf liquor at my disposal.

And where the hell are you getting the idea it was a protest? Because he had a banner? What was he protesting? Bong hits for the devil? Or the prohibition against bong hits for jesus? It was a joke or a prank, not a protest.
posted by Pastabagel at 11:48 AM on August 28, 2006


This is about defining the outer-boundaries of an already extant prinicple.

It is presented that way on paper, but so was the 'free-speech zone' thing, which is, imo, a real restriction on speech that should be protected.
posted by sonofsamiam at 11:53 AM on August 28, 2006


It was a joke or a prank, not a protest.

Indeed. But Starr seems to believe that the banner was a heavy-handed promotion of drug use among students that threatens the fabric of society, or law, or education, or anti-drug messages, or something. Most joke-tellers and pranksters are not required to justify their actions before the Supreme Court. That's part of my point.
posted by digaman at 11:55 AM on August 28, 2006


It was a joke or a prank, not a protest.

It may seem that way to you or me, but the wider ramifications of any joke are not going to be objective or universal.
posted by sonofsamiam at 11:55 AM on August 28, 2006


i love how in the photo of the banner, it looks like 'DONG HITS 4 JESUS'.

DONG RESIN 4 JESUSFISH!
posted by homunculus at 11:56 AM on August 28, 2006


It seems clear that Starr is hoping that the Court's decision will establish a precedent to limit other kinds of speech by students than jokey banners. In his quote in the FPP, Starr practically says so himself.

posted by digaman at 2:37 PM EST on August 28 [+] [!]


Because where the kid was and what he did are what matters. IF he was in class, there is no question that the school already had the right to limit his speech. If he was off campus on his own time doing something unrelated to school, it is very clear that the school has no power to limit his speech.

What would constitute the "other" speech that this would be precedent for limiting?
posted by Pastabagel at 11:58 AM on August 28, 2006


The kid was "on the sidewalk opposite the campus".

If he wasn't on school grounds, how can he be at school? That line of reasoning would be like me taking the day off from work, but I'm at work because the office might be across the street.

What's worse is how arguing these technicalities distract from larger and more critical issues (digaman's "elephant in the room", for one).
posted by Blazecock Pileon at 11:59 AM on August 28, 2006


Speech that "makes light of illegal substances," in Starr's words.

My, that seems quote broad.
posted by digaman at 12:00 PM on August 28, 2006


*quite
posted by digaman at 12:02 PM on August 28, 2006


It also contradicts what you said earlier that Starr thought it was "heavy-handed promotion" of drug use.
posted by Pastabagel at 12:02 PM on August 28, 2006


Pastabagel: He was at the school. The only reason he didn't make it to class is because he didn't walk across the fucking street to join his classmates. Get it?

Firstly, I'd kindly request you modulate your language.

Secondly, he was not at the school prior to this 'event' (since you so strongly dislike the word protest, even when I put quotes around it). My evidence? Page 16 of the brief, in the section entitled Factual Background:Prior to displaying the banner, Frederick had been absent from school.'

Since this is Starr's brief, and he's put it in the factual background I think I'll take his word for it over yours and treat it as a fact.

Hey, you know what? Sounds to me like 'The kid never made it to school' might be an accurate description of the fact he 'had been absent from the school' that is consistent with the article's claim that 'Mr. Frederick — who had yet to enter school property that morning because his car had been stuck in the snow'

Thirdly, I don't see a distinction between looking out a window and seeing a poster and being lined up on the sidewalk seeing a poster. Apart from viewing angle, obviously. I was not describing the 'event' literally.
posted by kaemaril at 12:06 PM on August 28, 2006


Speech that "makes light of illegal substances," in Starr's words.
It also contradicts what you said earlier that Starr thought it was "heavy-handed promotion" of drug use.

I think in Starr's view, the kid used a heavy-handed metaphor to treat a serious issue lightly. I don't see the contradiction.
posted by sonofsamiam at 12:08 PM on August 28, 2006


Pastabagel, there's only a contradiction in my statement if the only two words visible in your browser are "light" and "heavy."

Obviously, Starr thought this kind of joke or prank represents a deeply serious threat to the student body by undermining anti-drug education. Else why drag the Supreme Court into it?
posted by digaman at 12:11 PM on August 28, 2006


dios:The kid never made it to school, the 'protest' was not on school grounds, and to suggest that looking out your window to see a poster saying something the school doesn't like is disruptive is ridiculous.
posted by kaemaril at 1:30 PM CST on August 28

The Ninth Circuit (which ruled on behalf of the child) said you were wrong on all of these points.


Yes, they affirmed Tinker etc were relevant. I'd have been surprised if they hadn't, frankly, and I'm not even a lawyer.

But that doesn't mean that they agreed that:
1) The kid made it to school
2) That the protest was on school ground
3) That to suggest that looking out your window to see a poster saying something the school doesn't like is disruptive is not ridiculous.
posted by kaemaril at 12:15 PM on August 28, 2006



Modulate my language? Are you kidding me? How many threads start with "Fuck Bush", or the like? I don't see a lot of calls to mind language there. Whatever. The rules are different if you disagree with the prevailing opinion, I suppose.

So he managed to get as close as across the street from the school, with his 20ft banner, but didn't actually make it to school? And what difference does it make? I said he cut. You're saying he was absent. They mean the same thing. He was punished for truancy among other things. What's your point?
posted by Pastabagel at 12:15 PM on August 28, 2006


Else why drag the Supreme Court into it?
posted by digaman at 3:11 PM EST on August 28 [+] [!]


Because schools are placed in a contradictory position. Federal mandates require schools to certify that their antidrug programs convey a clear and consistent message that illegal use of drugs is wrong and harmful. If they allow kids to protest this, can they really certify that they are conveying such a message?

So to be able to cover themselves, they punish those who protest against this at school or at school events. But if the kids who are punished can sue the school for damages, how does the school deliver the antidrug message consistently if they can't punish kids for contradicting the message for fear of liability?
posted by Pastabagel at 12:21 PM on August 28, 2006


Pastabagel : Modulate my language? Are you kidding me? How many threads start with "Fuck Bush", or the like?
I don't know, I don't care. I certainly don't appreciate language like that being directed my way, however:
He was at the school. The only reason he didn't make it to class is because he didn't walk across the fucking street to join his classmates. Get it?

I said he cut. You're saying he was absent. They mean the same thing.

No, they don't. One is deliberate truancy, the other is absence - which can be explained by a number of things including truancy. 'Who had yet to enter school property that morning because his car had been stuck in the snow' does not equate deliberate truancy. That's my sole point.
posted by kaemaril at 12:24 PM on August 28, 2006


Just wondering, Pasta, whose sockpuppet are you?
posted by cavalier at 12:30 PM on August 28, 2006


Because schools are placed in a contradictory position. Federal mandates require schools to certify that their antidrug programs convey a clear and consistent message that illegal use of drugs is wrong and harmful. If they allow kids to protest this, can they really certify that they are conveying such a message?

Yes, of course they can. 'Dear federal government, we are doing our utmost to convey the message that drugs are really, really harmful and should not be misused (attached is all the relevant lesson plans). A small portion of the student body sometimes exercise their constitutionally protected right to free speech to disagree with this, sometimes jokily sometimes seriously (a few believe the war on drugs is ... less than wholly effective) whereupon we engage them in rational debate to attempt to persuade them otherwise instead of hitting them over the head with the suspension-club.'

There you go.
posted by kaemaril at 12:30 PM on August 28, 2006


Who had yet to enter school property that morning because his car had been stuck in the snow' does not equate deliberate truancy. That's my sole point.
posted by kaemaril at 3:24 PM EST on August 28 [+] [!]


Ok. So let's assume the kid is telling the truth about the car.

When he got to the event, he unfurled the banner, right? So when he unfurled the banner, was he at school at that point, or was he still not at school?

It seems to me that if he arrived late, but then decided to screw around with the banner instead of proceeding to school, he is cutting class.
posted by Pastabagel at 12:31 PM on August 28, 2006


A few observations:

(1) At the most general level, there is a split in the circuits on this issue only because the Ninth Circuit issued this opinion. As Starr notes in his petition--an excellent petition, by the way--prior to the Ninth Circuit's opinion there was consensus among the Circuits that this kind of speech was easily regulable by school authorities. Given the track record of the Ninth Circuit, particularly when it's out on it's own, I wouldn't be the least bit surprised if the Supreme Court grants cert. and reverses the judgment.

(2) There are actually two important questions here: (1) the underlying issue of whether the suspension of Frederick was constitutional, and (2) whether the superintendent is answerable in money damages under 42 U.S.C. § 1983. While the Supreme Court could conceivably affirm the Ninth Circuit and conclude that the superintendent's acts were unconstitutional, it is simply inconceivable that they would affirm an award of money damages. In order for a plaintiff to overcome qualified immunity and for an official to be answerable in money damages under § 1982, the acts must have been "objectively unreasonable" and in violation of "clearly established law." The Ninth Circuit's hand-waving aside, that's simply not the case here. The Circuit split alone is probably enough demonstrate that.

(3) The Ninth's Circuit's opinion [pdf] makes clear that the fact that Frederick was not the school campus proper was not a deciding factor:
One amicus, Drug Policy Alliance, argues that we should analyze this not as a student speech case, but simply as speech on a public sidewalk. That would make the case analogous to a student having an after-school job at a video store that rents out Cheech and Chong tapes, or a student driving a car on public streets with a “Bong Hits 4 Jesus” bumper sticker. Were this factually such a case, the law would be easy indeed, but the facts established by the submissions on summary judgment make this a student speech case. Even though Frederick never got to school that morning, that was only because he got stuck in his driveway because of the snow. School had started and the students were released to watch the Olympic torch pass. And even though supervision of most students was minimal or nonexistent, the school could have supervised them more if it chose to, as it did with the gym class and perhaps the pep band and cheerleaders. Frederick was a student, and school was in session.
Again, it's conceivable that the Supreme Court could conclude otherwise and affirm the Ninth Circuit on the basis that Frederick was not technically on school property, but that wouldn't make any sense. Frederick was a student under school supervision at a school-sponsored event. If the fact that he was not on school property was dispositive, the same principle should apply to field trips.

(4) The Ninth Circuit based its opinion on the conclusion that the school district could not prohibit or suppress this kind of speech without showing that there is some genuine disruption:
Thus, the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly “No.”
This conclusion largely turns on the Ninth Circuit's reasoning that two Supreme Court cases finding against students in speech cases were distinguishable. The first is Bethel School District No. 403 v. Fraser, in which the Court held that schools may suppress vulgar, lewd, indecent, obscene, and plainly offensive student speech at school-sponsored functions, even absent a showing of disruption. The Ninth Circuit interpreted Fraser narrowly to cover only sexual speech. The second case is Hazelwood School District v. Kuhlmeier, in which the Court held that students' school-sponsored or curricular speech can be suppressed when it conflicts with messages the school intends to send. The Ninth Circuit concluded that this case does not involve school-sponsored or curricular speech, and therefore that Kuhlmeier does not apply.

As to Fraser, I think the Ninth Circuit interpreted the decision too narrowly, limiting its scope to only sexual speech. Other Circuit have interpreted Fraser more broadly to include other kinds of "offensive" speech. On the other hand, I'm not sure that the banner in this case was "plainly offensive." As to Kuhlmeier, however, I think the Ninth Circuit plainly erred. Although the speech at issue in Kuhlmeier was more plainly school-sponsored--a student newspaper--it's clear that Kuhlmeier also applies when the school establishes a limited public or private forum for student speech. The speech in this case was made by a student at a school sponsored and supervised event, and the Ninth Circuit should arguably have done some forum analysis, which is notably lacking from the opinion.

If the Ninth Circuit is correct that neither Fraser nor Kuhlmeier applies, then the court is likely also correct that the school district must demonstrate a legitimate potential for disruption caused by the banner. However, if either of the Supreme Court opinions is applicable to the case, then no disruption is required. Confused yet?

(5) In any case, the law in this area is far from clear, despite the protestations of both Starr and the Ninth Circuit. I worked on a school speech opinion for a different circuit court this past year, and the law genuinely is a mess, both within and between circuits. It may well take another Supreme Court opinion to resolve this mess, and as I noted above, that strongly counsels against a finding on money damages against the principal or superintendent.
posted by monju_bosatsu at 12:33 PM on August 28, 2006


Just wondering, Pasta, whose sockpuppet are you?

So because he doesn't tow the party line he must be incapable of thinking for himself?
posted by Sandor Clegane at 12:33 PM on August 28, 2006


btw, as I pointed out earlier, in Alaska marijuana is not completely an illegal substance. It's legal for medical use. There goes Starr's 'making light of illegal substances' ... OK, it's tenuous, but still ... :)
posted by kaemaril at 12:38 PM on August 28, 2006


So because he doesn't tow the party line he must be incapable of thinking for himself?

The opposite. :p
posted by cavalier at 12:39 PM on August 28, 2006


monju_bosatsu: Excellent comment, dude.
posted by kaemaril at 12:41 PM on August 28, 2006


Just wondering, Pasta, whose sockpuppet are you?
posted by cavalier at 3:30 PM EST on August 28 [+] [!]


Yours. Really. That voice in your head? All me. BOO! Now, would it kill you to put some food in the fridge?

And take a shower every once and a while, because damn.
posted by Pastabagel at 12:44 PM on August 28, 2006


Remember: dios is a troll, you aren't required to answer him!

Let's look at his first post in this thread, shall we?

The very first two questions are in fact derails that any reasonable person would see the answer to: the impeachment is mentioned because of course that's the context that most people would remember Starr. It's just like saying Michael Cimino (of Heaven's Gate fame) or Gibby Haines (from the Butthole Surfers).

These questions don't illustrate anything. They aren't a genuine request for information, because dios certainly understands exactly who Ken Starr is and why we'd mention his main claim to fame. They're simply a troll.

You aren't required to answer trolls! Simply ignore him. Metafilter will be a better place for it.
posted by lupus_yonderboy at 12:44 PM on August 28, 2006


When he got to the event, he unfurled the banner, right? So when he unfurled the banner, was he at school at that point, or was he still not at school?

It seems to me that if he arrived late, but then decided to screw around with the banner instead of proceeding to school, he is cutting class.


Well, if he turns up and there's his classmates on the street outside and he just merges in ... did that mean he'd 'arrived' at school, even though he'd never entered school property, or was he still being truant? Should he have crossed onto school property and then back again?

Frankly, I think an argument could be made either way. Looks like the ninth considered that, though, and decided it wasn't really relevant ... (see monju's excellent comment)
posted by kaemaril at 12:45 PM on August 28, 2006


lupus, dios's questions are cogent and perfectly on topic. Since when is that trolling?

As for the Starr, the last point that I was going to make in my comment above, but forgot, is that Starr is one of the country's premiere Supreme Court litigators, and now works for Kirkland & Ellis. The firm was hired to handle the appeal, and so naturally the firm put an experienced hand on it. Starr's politics and handling of the Clinton investigation and impeachment are, frankly, irrelevant.
posted by monju_bosatsu at 12:48 PM on August 28, 2006


Frankly, I think an argument could be made either way. Looks like the ninth considered that, though, and decided it wasn't really relevant ... (see monju's excellent comment)
posted by kaemaril at 2:45 PM CST on August 28


... that I also pointed out to you above. But I guess you will admit your point is irrelevant now despite the fact you have continued to argue it?

I agree monju's comment is excellent, and I applaud him for taking the time of making an extended argument that was in the links when its clear that people can't be bothered to read them.

Starr's politics and handling of the Clinton investigation and impeachment are, frankly, irrelevant.
posted by monju_bosatsu at 2:48 PM CST on August 28


Of course they are irrelevant to the issue if the issue was supposed to be the constitutional one. But the O.P. made it clear the issue he is concerned with is GOP attempts to curtail civil liberities. Thus, Starr's past is important to discussing what a travesty this brief is. Or something to that effect.

(monju_bosatsu: as for lupus, ignore him---I do. Like all the other people who bitch about everything I say here, they have no legs to stand on and are off-topic and trolling far more than I ever am. The moron apparently can't consider any thought beyond "dios is a troll.")
posted by dios at 12:57 PM on August 28, 2006


After reading Monju's excellent comment I read the decision itself. A couple of footnotes are particularly interesting, since Starr is arguing schools should be able to prohibit speech dealing with 'illegal substances':

The issue of “illegal” drug use is a little complicated under Alaska law. Alaska has an express constitutional right to privacy that the federal constitution does not have. The Alaska Supreme Court has held unanimously that the state had the burden of justifying its statute prohibiting marijuana use, and “no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown.” Ravin v. State, 537 P.2d 494, 511 (Alaska 1975), followed in Noy v. State, 83 P.3d

545 (Alaska Ct. App. 2003). Frederick was an adult citizen of Alaska, not a minor, at the time he displayed the sign. The Alaska Supreme Court has also taken a libertarian position regarding schoolchildren, holding that no “compelling state interest” justified a school regulation on boys’ hair length. Breese v. Smith, 501 P.2d 159 (Alaska 1972). Alaska has had repeated referenda about whether, and to what extent, to criminalize or legalize marijuana, see Noy, 83 P.3d at 545-46, so messages about marijuana have a degree of political salience to them and might be understood as political advocacy. We need not reach any questions of Alaska law

Looks to me like the issue of whether the guy was advocating illegal drug use is not cut-and-dry.
posted by kaemaril at 1:00 PM on August 28, 2006


Should he have crossed onto school property and then back again?

Obviously, the Infield Fly Rule applies in this case.
posted by Kirth Gerson at 1:01 PM on August 28, 2006


After reading Monju's excellent comment I read the decision itself.

So you hadn't even read the opinion and you were arguing it? Did it not occur to you to do so after I posted this and you argued with it?

Good job, mate.
posted by dios at 1:02 PM on August 28, 2006


Frederick was an adult citizen of Alaska, not a minor,...

I noticed that too, but I don't think it matters. The issue is top what extent the school has authority over him, and other students similarly situated.

But as an aside, what the hell is he still doing in high school?
posted by Pastabagel at 1:02 PM on August 28, 2006


dios : No, you didn't 'point it out to me', you merely told me I was wrong. Since I had merely said the guy never made it to school - something in the factual backgroud to the case I merely asked you to point out to me where the ninth said I was wrong.

Irrelevent? So it seems. Wrong? No.
posted by kaemaril at 1:03 PM on August 28, 2006


dios : 1) No, I merely read the Starr brief, thinking that would cover things nicely. The actual opinion was more illuminating, I'll certainly concede.

2) Bite me, 'mate'
posted by kaemaril at 1:05 PM on August 28, 2006


Like all the other people who bitch about everything I say here, they have no legs to stand on and are off-topic and trolling far more than I ever am.

It's a legless anti-dios conspiracy!
posted by Kirth Gerson at 1:07 PM on August 28, 2006


Pastabagel: I was more referring to the point that, in Alaska, at least according to their own supreme court - marijuana use in the home seems to, at the very least, inhabit a grey area. Clearly, then, the guy couldn't have been 'making light' of an indisputably illegal substance:
no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown.
posted by kaemaril at 1:09 PM on August 28, 2006


So you hadn't even read the opinion and you were arguing it? Did it not occur to you to do so after I posted this and you argued with it?

Good job, mate.
posted by dios at 4:02 PM EST on August 28 [+] [!]


I thought the same thing, especially after he posted:

Actually, I did read the petition.

way before he said he read it after monju's post, but at that point I heard the siren's song and sought nepenthe in a highland single malt...
posted by Pastabagel at 1:11 PM on August 28, 2006


Fuck Bush.
That said I agree with Pastabagel’s comment:
“Because where the kid was and what he did are what matters. IF he was in class, there is no question that the school already had the right to limit his speech. If he was off campus on his own time doing something unrelated to school, it is very clear that the school has no power to limit his speech.”

The nuance there is in Blazecock Pileon’s question:
“If he wasn't on school grounds, how can he be at school? That line of reasoning would be like me taking the day off from work, but I'm at work because the office might be across the street.”

The principal -and essentially the school - is responsible for you, at least in part, nearly all the time in every way your boss isn’t once you’ve reached the age of majority. Until that time you are someone’s responsibility - all the time.
The underlying question here is under who’s responsibility was this kid when he was doing this?
If he was his parents responsibility - as the school seems to be saying since they punished him for truency - than the kid was not “at school” and it seems - as Pastabagel pointed out - the school is playing ‘cover our ass’ with regards to policy (and ultimately funding).
The kid was - apparently - supposed to be in school, which makes that issue a bit convoluted.

Everything else is marginal, but has been exploded into a major issue. Yes, our drug policies suck. Yes, Starr is a dick. Yes, there’s a dog and pony show going on about all this. Yes, minors (under 18) are hosed on a regular basis (often with good reason, sometimes not). But the bottom line is that although they share responsibility for your child, school administrators are not, and should not be, responsible for law enforcement (or policy enforcement for that matter).
The advocation for (or humor on) use of illegal substances is protected speech. Period.
To rule that school administrators can act to limit such speech in circumstances where they would normally not have control over a student forces them to have responsibility for some of those situations and could reasonably open them to litigation. Which forces them into a position where they are de-facto law enforcement personnel, which is ridiculous given first amendment considerations.
It is traditional in the Catholic church to serve children the ‘Blood of Christ’(a little wine with water). Clearly the serving of alcohol to a minor is illegal. If my kid comes back to school from church with wine on his breath is he allowed back into school?
Rule that teachers have to enforce laws (that otherwise do no harm or are constitutionally protected while I’m responsible for my child - I mean I’m not getting the kid drunk, it’s a religious ritual) and my kid is arrested for drinking alcohol.

In this case if the kid was truant than his parents are/were responsible for him and the school should not be responsible for any acts (legal or otherwise) the kid commits off school property.

Starr may or may not want it, but the ultimate effect would be to force administrators to act in these situations. I wouldn’t want to saddle them with that, nor would I want my property tax dollars to be spent that way.
posted by Smedleyman at 1:11 PM on August 28, 2006


pastabagel : Good job, mate.
posted by dios at 4:02 PM EST on August 28 [+] [!]

I thought the same thing, especially after he posted:

Actually, I did read the petition.

I did read the (Starr) petition. The ninth's opinion? No, I didn't read that. I kinda figured that, as a petition, the facts and opinion would be largely represented. Mea culpa, mea culpa, mea maxima culpa.

I agree with the ninth on the freedom of speech aspect, not so much on the principal being personally accountable.
posted by kaemaril at 1:16 PM on August 28, 2006


/of course that’s predicated on the idea that he was not ‘at school.’ If he was technically under school supervision, then yeah, they can limit what he has to say.
posted by Smedleyman at 1:16 PM on August 28, 2006


If he was technically under school supervision, then yeah, they can limit what he has to say.

So we can pretty much ignore your long-ass screed, then?
posted by monju_bosatsu at 1:20 PM on August 28, 2006


Fuck Bush.

That's the ole MetaFilter Spirit! Why, aways back in aught-four we'd a-cried "Fuck Bush" from the tops of the tallest blog threads, we did.

Back then, a body'd get two weeks bannin' for talkin' temperance. "Ban 'em!" we cry, and Matt'd ban 'em quicker than a troll posting 'bout abortion, he would.

Damn kids!
posted by Pastabagel at 1:22 PM on August 28, 2006


Fuck Bush.

Oh, and this comment displays a profound misunderstanding of the procedural and factual background of this case, the issues involved, and the parties arguing the case. But, by all means, don't let that stop your ranting.
posted by monju_bosatsu at 1:32 PM on August 28, 2006


From the ninth's opinion:

There is no genuine issue of fact material to the decision. Frederick’s display was not in a class. Frederick and the other students who displayed the sign did not participate in any of the disorderly conduct of the students who threw snowballs or plastic Coca-Cola miniature sample bottles. The school principal and school board do not claim that the display disrupted or was expected to disrupt any classroom work. They concede that their objection to the display, and the reason why the principal ripped down the banner, was not concern that it would cause disruption but that its message would be understood as advocating or promoting illegal drug use. Frederick says that the words were just nonsense meant to attract television cameras because they were funny. We nevertheless proceed on the basis that the banner expressed a positive sentiment about marijuana use, however vague and nonsensical.

Thus, the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly “No.”
...
Tinker disposes of the School Board’s argument that “school administrators were entitled to discipline Frederick’s attempt to belittle and undercut this critical mission” of preventing use of illegal drugs by a sign that was “a parody of the seriousness with which the school takes its mission to prevent use of illegal drugs.” Under Tinker, a school cannot censor or punish students speech merely because the students advocate a position contrary to government policy. The Tinker armbands were about war. Government has no mission in which victory is so important as war. The federal government was, at the time of the facts giving rise to the Tinker case, prosecuting a war. Government policy was to support and advance the effort to win the war. The black armbands in Tinker expressed hostility to the war. By doing so, they legitimized opposition and undermined support for the war. Yet the students in high school had a constitutional right to express their opposition to this critically important mission of the federal government.
...
The two leading Supreme Court cases that have held against students claiming First Amendment rights to speak in a way unacceptable to school administrators are distinguishable. Bethel School District No. 403 v. Fraser held that a high school student did not have a First Amendment right to give a sexually suggestive nominating speech for a candidate for student office at a school assembly that “was part of a school-sponsored educational program in self-government,” where disruption immediately ensued as the student gave the speech. Fraser holds that high school students’s rights to free speech in school are not coextensive with adults’s rights, and “pervasive sexual innuendo” that is “plainly offensive . . . to any mature person” can be marked off as impermissible incivility within the school context. Fraser focuses upon the sexual nature of the offensiveness in the in-school speech that can be punished, as contrasted with the “political viewpoint” of the speech protected in Tinker. Our case differs from Fraser in that Frederick’s speech was not sexual (sexual speech can be expected to stimulate disorder among those new to adult hormones), and did not disrupt a school assembly. Also, it is not so easy to distinguish speech about marijuana from political speech in the context of a state where referenda regarding marijuana legalization repeatedly occur and a controversial state court decision on the topic had recently issued. The phrase “Bong Hits 4 Jesus” may be funny, stupid, or insulting, depending on one’s point of view, but it is not “plainly offensive” in the way sexual innuendo is.

Excellent points, I (in my admittedly non-lawyerly way) thought.
posted by kaemaril at 1:41 PM on August 28, 2006


dios writes "So you hadn't even read the opinion and you were arguing it?"

I read the opinion. It's garbage. Ken Starr is the dios of the legal world.

I notice that you claim to have read it, yet you broke in less than 13 minutes after the FPP was posted. You read 29 pages of legal opinion, two news articles, and a wikipedia entry in 13 (assuming you picked it up the second it was posted) minutes? You were quick enough in the brain to do that, and you still had those lame questions?

dios writes "So until you can at least grasp what I am saying, don't bother making snarky bullshit comments like that."

Sorry, went to lunch and didn't have a chance to make a timely snarky bullshit comment.

The kid wasn't in school. End of story. The school's rules don't have jurisdiction everywhere in the universe simply because you're on the rolls and school is in session. The only offense he's committed against the school is truancy. Why do you hate our freedom?
posted by mullingitover at 1:42 PM on August 28, 2006 [2 favorites]


dios: fucking brief unlike you.... utter bullshit.
pasta: he didn't walk across the fucking street to join his classmates. Get it?
monju: we can pretty much ignore your long-ass screed.


Bong Hits 4 the Trinity!
posted by If I Had An Anus at 1:48 PM on August 28, 2006 [1 favorite]


kaemaril, I assume the excellent points to which you refer are the three portions of the opinion you have bolded. I have a few responses:

(1) The school principal and school board do not claim that the display disrupted or was expected to disrupt any classroom work.

Well, right. This isn't so much to make a point as to highlight the issue. If Fraser and/or Kuhlmeier apply, then likely no disruption is necessary, and the student loses anyway. If those cases do not apply, then disruption is probably a necessary element to justify suppression under Tinker. This doesn't answer the question; it only presents it.

(2) Thus, the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly “No.”

This also isn't making a point; it's merely a statement of the court's conclusion, made to introduce the analysis. Again, this only presents the question as formulated by the court, and gives a one-word answer.

(3) Also, it is not so easy to distinguish speech about marijuana from political speech in the context of a state where referenda regarding marijuana legalization repeatedly occur and a controversial state court decision on the topic had recently issued. The phrase “Bong Hits 4 Jesus” may be funny, stupid, or insulting, depending on one’s point of view, but it is not “plainly offensive” in the way sexual innuendo is.

This statement at least makes an argument. As I noted above, I agree with the court that it is harder to label the speech in this case as "plainly offensive" than in Fraser, where the student's speech was sexually suggestive. Nonetheless, this argument addresses only Fraser, not Kuhlmeier, where I think the far more interesting questions lay.
posted by monju_bosatsu at 1:50 PM on August 28, 2006


I notice that you claim to have read it, yet you broke in less than 13 minutes after the FPP was posted. You read 29 pages of legal opinion

I read the brief and only the brief. And I read it in short time. Why would I waste my time reading the bullshit links about Ken Starr or a news article which is some untrained person's attempt to dumb it down?

The kid wasn't in school. End of story.
posted by mullingitover at 3:42 PM CST on August 28


Gotcha. Thanks for clearing that issue up. Maybe you ought to let the Ninth Circuit, Kirkland & Ellis, and the Supreme Court in on your decision in this matter. You and kaemaril could make Con law much easier for all of us once you completely ignore all of those trifling precedents.
posted by dios at 1:52 PM on August 28, 2006


Nonetheless, this argument addresses only Fraser, not Kuhlmeier, where I think the far more interesting questions lay.
posted by monju_bosatsu at 3:50 PM CST on August 28


Exactly. And the large potential problem with the 9th Circuit ("We may be 9th, but we are #1 in getting reversed!") opinion is that it too easily discards Kuhlmeier in a very conclusory manner and comes to the conclusion that the only speech which Fraser covered is purient in nature. I don't think they have support for either of those rulings.

I see this is an interstitial case. The boundaries are there regarding what can be regulated and what can't. The question is whether this is included in those boundaries or not. That is something the Supremes need to help define.

And you were right above that the second issue regarding qualified immunity is almost a no-brainer. But that is a more complicated issue legally and not very controversial.
posted by dios at 2:00 PM on August 28, 2006


I read the opinion. It's garbage. Ken Starr is the dios of the legal world.

Are you talking about the opinion or the petition? I assume you're talking about the petition, given your reference to Starr. I assume that you're not a lawyer, and that you're primary exposure to Starr was Clinton's impeachment. If that's the case, your impression is woefully inadequate. Starr is a top-notch appellate advocate, and one of the top Supreme Court litigators in the country. He is routinely sought after by both sides in complex cases on appeal, and that's reflected by the fact that he was hired by Kirkland & Ellis, which has one of the top Supreme Court practices in the country. Before private practice, and before his stint as Independent Counsel, Starr was a well-respected judge on the D.C. Circuit and the Solicitor General of the United States. Not a bad resume. Saying that "Ken Starr is the dios of the legal world" is a compliment that dios probably doesn't deserve.

And garbage? I don't think so. The petition is succinct, persuasive, and frames the issues over which circuits are split. The goal of the petition is to persuade the Supreme Court to grant certiorari, and goal which I think it accomplishes.

The kid wasn't in school. End of story. The school's rules don't have jurisdiction everywhere in the universe simply because you're on the rolls and school is in session.


Did you read the opinion or the petition? This was a school-sponsored, school-supervised event. As the Ninth Circuit concluded, "Frederick was a student, and school was in session."
posted by monju_bosatsu at 2:02 PM on August 28, 2006


Nonetheless, this argument addresses only Fraser, not Kuhlmeier, where I think the far more interesting questions lay.

I think that Fraser should most certainly NOT be on point.
1) The language of the banner was clearly NOT offensive. The idea behind it might have been, at least to the school board, but that's rather a different story from the sexually suggestive stuff in Fraser.
2) As the court points out, the banner could be argued to have a political component.

I was gonna include Kuhlmeier, but my comment was already long enough :) I'm no lawyer, but Kuhlmeier seems to be more along the lines of 'it's a school activity, so you don't get to suggest the school's promoting or sponsoring this idea...' Or so the opinion seems, to me, to be saying:

The Court distinguished Tinker on the ground that “[t]he question whether the First Amendment requires a school to tolerate particular student speech — the question that we addressed in Tinker — is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.” This student newspaper was “part of the school curriculum.” Exclusion of any First Amendment duty to “promote” a student viewpoint means that a school necessarily retains authority to refuse to “sponsor” speech such as Frederick’s, which arguably promotes drug use. Kuhlmeier does not control the case at bar, however, because Frederick’s pro-drug banner was not sponsored or endorsed by the school, nor was it part of the curriculum, nor did it take place as part of an official school activity

I think that's persuasive. The banner may have been at an official school activity, but it was not part of an official school activity. The school was not 'sponsoring' the banner, so had no control over it, unlike the student newspaper.
posted by kaemaril at 2:04 PM on August 28, 2006


re: my Fuck Bush comment.


But by all means, don’t let me stop you from taking yourself too seriously.

I missed the point where any legal analysis had anything to do with my opinion and general assertion that I don’t want a school administrator telling my kid what he can or can’t say when he is under my supervision and not his. Excuse the fuck out of me for agreeing with different portions of people’s opinions and trying to find some commone ground.
I wasn’t aware I had to be a lawyer to comment on metafilter. I’ll shut the fuck up now that my imput isn’t qualified to be welcome. Go fuck yourself.
posted by Smedleyman at 2:06 PM on August 28, 2006 [1 favorite]


monju_bosatsu writes "I assume that you're not a lawyer, and that you're[sic] primary exposure to Starr was Clinton's impeachment."

No, I'm not a lawyer. I have a respectable job.

Hey, you just answered dios' (a) question! You could've let him know about this on the side and saved him some embarassment.
posted by mullingitover at 2:12 PM on August 28, 2006


kaemaril, it's only superficially persuasive, because it ignores the forum component of Kuhlmeier's analysis. Kuhlmeier applies not only to curricular activities, but where a school creates a limited public or private forum for student speech. The school in this case arguably created such a forum by allowing students to create signs and banners and to line the torch route. If that's the case, then the school has the power to suppress speech under the standards announced in Kuhlmeier, which are consistent with the actions of the principal and superintendent in this case. Now, whether Kuhlmeier will ultimately apply to this case is a close call--partly because of the type and context of the speech and whether a forum was created, and partly because this area of the law is such a mess--but the Ninth Circuit completely ignores the issue and gives Kuhlmeier short shrift.
posted by monju_bosatsu at 2:13 PM on August 28, 2006


Ach. My apologies for the acrimony. Point still stands. (lousy day - but no excuse and I’m out of the thread either way)
posted by Smedleyman at 2:25 PM on August 28, 2006


monju : After reading it at http://www.law.umkc.edu/faculty/projects/ftrials/firstamendment/hazelwood.html, it seems Kuhlmeier is more interested in speech that is promoted by the school.

The question whether the First Amendment requires a school to tolerate particular student speech -- the question that we addressed in Tinker -- is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.

It seems to me that merely because a school allows pupils to go and observe an event it does not then become an event sponsored by the school.

If the school was sponsoring an art exhibition of the student's arts, it seems to me that Kuhlmeier would apply if the guy tried to sneak his banner in as a work of art. Then, the school would have reasonably censor (or remove entirely) his stuff as the public would have reasonable grounds to suspect this was somehow 'school sanctioned' speech.

OTOH, this was merely a banner on a public street at a public event that pupils had been allowed to attend. I wouldn't really consider that a public or private forum for student speech, nor would I think that the banner was school sanctioned. In fact, other than the fact it was directly opposite the school there was no reason to think the banner had anything to do with the school at all.
posted by kaemaril at 2:31 PM on August 28, 2006


kaemaril, I don't disagree with you, but I do think it's a close call. Although there is some language in Kuhlmeier that suggests that "promote" means that the school must officially approve or sanction the speech, most courts don't interpret it that way--which makes sense, of course, because if the speech was approved, there wouldn't be a case. Instead, most courts, at least in my research, seem to find that merely creating a forum is sufficient to "promote" the speech within the meaning of Kuhlmeier. I think there's a strong argument that allowing the students to gather at a school-sponsored event under school supervision with banners and signs functionally created a forum subject to Kuhlmeier. Of course, the school district would argue that there was no forum at all, and the event was not designed for student speech. However, as numerous cases demonstrate, it's not necessary for the school to intend to create a forum; it can do so inadvertently.
posted by monju_bosatsu at 2:41 PM on August 28, 2006


monju : With regards close call, well maybe. I can't help feeling the court would have ruled differently if the school had a really big banner saying 'Juneau school board supports the Olympics' with the kids and their signs underneath and the dude had snuck in his banner ... 'cos then you could reasonably infer this was 'school approved' speech, which obviously the school has some say in, and obviously the school had some manner of forum.

But here...? This was just a display on a public road with absolutely no indication that it was in someway school approved or sanctioned.
posted by kaemaril at 2:53 PM on August 28, 2006


[i]... is that it too easily discards Kuhlmeier in a very conclusory manner and comes to the conclusion that the only speech which Fraser covered is purient in nature. I don't think they have support for either of those rulings.

posted by dios at 10:00 PM GMT on August 28


Actually, the issue Kuhlmeier seems relatively straightforward to me, but of course in law there's no such thing and I'm no lawyer, so I'll happily take your word for it :)

However, I don't see where the ninth dismisses Fraser by concluding it only covers 'prurient' speech. It seems to me the standard as it describes it is 'plainly offensive':

Fraser holds that high school students’s rights to free speech in school are not coextensive with adults’s rights, and “pervasive sexual innuendo” that is “plainly offensive . . . to any mature person” can be marked off as impermissible incivility within the school context... The phrase “Bong Hits 4 Jesus” may be funny, stupid, or insulting, depending on one’s point of view, but it is not “plainly offensive” in the way sexual innuendo is.

Further, the court's concern that this may qualify as political speech also shows that they simply did not dismiss Fraser out of hand as simply being 'non-prurient' and thus not relevant:

Also, it is not so easy to distinguish speech about marijuana from political speech in the context of a state where referenda regarding marijuana legalization repeatedly occur and a controversial state court decision on the topic had recently issued
posted by kaemaril at 3:45 PM on August 28, 2006


But as an aside, what the hell is he still doing in high school? - Pastabagel

ummm... Bong hits?
posted by raedyn at 3:58 PM on August 28, 2006


kaemaril, don't be offended by this, but I'm not sure you know what you are talking about.

You say "I don't see where the ninth dismisses Fraser by concluding it only covers 'prurient' speech. It seems to me the standard as it describes it is 'plainly offensive'"

Then you go on to quote from the opinion which states that Fraser is limited only to prevasive sexual innudeno, which is what pruient means under Supreme Court rulings in Roth.

Your next sentence about political speech does not parse at all.

It's pretty simple: the Ninth Circuit used a restrictive reading of Fraser that has no basis in the Supreme Court's jurisprudence that "plainly offensive" can only mean sexual content.

That interpretation will likely be overturned as it is a circuit court brightline test that has no basis in the Supreme Court's original opinion.
posted by dios at 4:04 PM on August 28, 2006


No, Dios, I'm not offended by this. I'm no lawyer, so maybe I'm missing it, but I fail to see how the ninth has concluded that Fraser relates only to 'purient (sic) in nature'.

Further, for that matter, after reading Fraser, it seems that the offensive speech in that case disrupted the school, and the court acknowledged it had no political content - unlike the current case. I'm failing to see how Fraser is relevant at all, as the ninth did. Please, feel free to elaborate. I want to hear more.

My 'next sentence about political speech' is a direct quote from the opinion, so don't blame me if it doesn't parse.
posted by kaemaril at 4:18 PM on August 28, 2006


Hmm. This bit acknowledged it had no political content is badly worded, I must be getting tired. Sorry, I meant to say that the court didn't agree that it should be protected in the same way as Tinker. Er ... I think that's what I mean, anyway ... :)
posted by kaemaril at 4:41 PM on August 28, 2006


SmedleymanExcuse the fuck out of me for agreeing with different portions of people’s opinions and trying to find some common ground. I wasn’t aware I had to be a lawyer to comment on metafilter. I’ll shut the fuck up now that my input isn’t qualified to be welcome. Go fuck yourself.

You just revised my concept of unregulated discourse. No, seriously. Metafilter has like, smart people, or some junk.
posted by modernerd at 7:33 PM on August 28, 2006


posted by dios: Wouldn't it be wise to link the the lower court ruling and possibly wait to see how the Supremes handle this?

Actually, I don't think the Supremes can handle this at all. They broke up a long time ago and I'm pretty sure the other two don't wanna be in the same room with Diana Ross.
posted by flapjax at midnite at 5:38 AM on August 29, 2006


A bong is a popular device used to smoke marijuana.

Of course. How do you think it got to be so popular?
posted by jonp72 at 7:04 AM on August 29, 2006


This is the distinction that the circuit court makes between its own case and Kuhlmeier:

Kuhlmeier does not control the case at bar,however, because Frederick’s pro-drug banner was not sponsored or endorsed by the school, nor was it part of the curriculum, nor did it take place as part of an official school activity. Kuhlmeier might apply had Frederick insisted on making his “Bong Hits 4 Jesus” banner in art class, but that is not what the record shows. His display took place out of school while students were released so that they could watch a Coca-Cola and Olympics activity.

It looks solid reasoning to me. In addition, it undermines some of the claims to school sponsorship by showing that the event was sponsored by Coca-Cola, but not the school. If a school lets students out of school to participate in a glorified publicity event for a soft drink, they shouldn't get the right to police the speech that occurs there. In my opinion, the school forfeited its right to sponsorship.

Here are some other highlights of the opinion:

There was disorder at the torch passing, but the uncontradicted evidence is that it had nothing to do with Frederick and his fellow sign-holders. Coca-Cola handed out samples in plastic bottles, and students threw them at each other. Students threw snowballs. Some students got into fights. But Frederick and his group did not participate in these disorders, saving their energy for what they hoped would be theirnationally televised sign display. And, the disruption that tookplace occurred before the display of the banner, so it could not have been caused by it.

In other words, the principal who suspended Frederick did so even when there were much more dangerous breaches of public order (snowballs and mini-cola bottles flying about) than an admittedly sophomoric banner about marijuana. The principal ignored numerous other incidents of disorder and disruption to suppress speech of which she disapproved.

Frederick says that the principal initially told him that he was suspended for five days, but when he quoted Thomas Jefferson to her, she doubled it. The principal says that she does not remember whether he quoted Jefferson to her, but that was not why the suspension was ten days. Frederick says that an assistant principal told him that the Bill of Rights does not exist in schools and does not apply until after graduation, but Principal Morse says that the assistant principal “made some remark to the effect that students do not have the same first amendment rights as adults.”

These are not "facts at issue" in the case, but based on my experience in high school (including my past history as a plaintiff in a school prayer case), I believe the student's account of events. In other words, he got punishment doubled arbitrarily for quoting the words of a Framer of the Constitution. In addition, I find entirely plausible that the assistant principal said that the Bill of Rights does not apply to students. If you believe that the assistant principal arrived at that statement after doing some hair-splitting legal analysis comparing the precedential merits of Tinker and Kuhlmeier, then I have a bridge in Brooklyn to sell you.

Public schools are instrumentalities of government, and government is not entitled to suppress speech that undermines whatever missions it defines for itself. What schools are entitled to do, as Fraser makes clear, is suppress speech that disrupts the good order necessary to conduct their educational function. No educational function was disrupted by the banner displayed during the Coca-Cola sponsored Olympics event.

That's another point that needs to be stressed. The school suppressed free speech rights in the context of a corporate-sponsored event that had zero educational value, while ignoring more obvious breaches of order (although they did not necessarily hold up the school to bad publicity). If the Supreme Court allows the school to get away with this, I can see how some Dubya-loving principal could use this as permission to police dissident speech at some "school-sponsored" propaganda photo op that George W. Bush loves to do.

Anyway, the fact that I am not a lawyer is irrelevant. Even if you could the Supreme Court to say this suppression of student speech was constitutional, that doesn't make it right.
posted by jonp72 at 8:00 AM on August 29, 2006


IANAL...

The school had every right to suspend him, but only for the truancy, which as has been said, he was also punished for. Either he was at school and his speech was restricted, or he wasn't at school, and he could say roughly whatever the hell he wanted. The school decided to have it both ways, because they wanted to throw everything they had at him, but they can't have it both ways. That's all there is to it, except to say that none of us are worse off for having a link to the impeachment information.
posted by Navelgazer at 8:31 AM on August 29, 2006


These kids were doing something for Jesus. When is the persecution of Christians in this country going to stop???!
posted by giantfist at 8:36 AM on August 29, 2006


Perhaps Christians for Cannabis should file an amicus brief, asserting the suppression of free exercise of religion.
posted by jonp72 at 8:47 AM on August 29, 2006 [1 favorite]


Hard to believe you can fit this many deck chairs on the Titanic.

The question in this thing shouldn't be the ability of the school to do this but why they would in the first place. A two week suspension over this? What do you get if you pitch a fit in an actual classroom during lessons, the death penalty?

Beyond the apparent over-reaction, what's this costing all of us? The school system has paid for lawyers for the local appeal and the 9th circus, if the Supremes pick this up then we all foot the bill in time and the opportunity cost since this is taking up the space another case could be using. Over.... banners across the street? During an event that happens once every four years?

Claims that the school has an obligation to this reaction is disingenuous. The extent of the punishment - two weeks of removal from school during which time, if things still work the way they did in the stone ages when I was in school, the student gets Fs on all tests and assignments for which he is no present - over a disagreement? Starr's petition says "They are responsible for teaching students about the dangers of illegal drugs" but they're responsible for teaching them a thousand other things too. How many of those lessons get you suspended if you refuse to accept them?

"a^2 + b^2 == c^2" says the teacher.
"I don't agree." responds the student.
"SUSPENSION!"

Or maybe more on point these days, how do we respond to students who refuse to play nice over evolution, or intelligent design if that's being taught? Somehow I doubt those kind of confrontations go beyond a red X on a test and a resolution to agree to disagree. Too bad we can't apply the same shrug and sally forth when the OH NOES DRUGS!@# comes up.
posted by phearlez at 8:47 AM on August 29, 2006


Amazingly, it turns out that the only remaining thing that could make lawyers look worse than the bitchy, overpaid sophists that they (usually) are is metafilter.

Well played, douchebags.
posted by bardic at 11:34 AM on August 29, 2006


Newflash! Bardic hates lawyers! More at 11.
posted by monju_bosatsu at 12:58 PM on August 29, 2006


No, just the rather mediocre ones that tend to dominate discussions here.
posted by bardic at 1:15 PM on August 29, 2006


As opposed to mediocre english teachers?
posted by monju_bosatsu at 2:00 PM on August 29, 2006


As a mediocre journalist, I resent that.
posted by digaman at 2:51 PM on August 29, 2006


Resin hits make baby Jesus cry.
posted by BitterOldPunk at 7:24 AM on August 31, 2006


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