Speech vs. Defiance
posted by Frank Pasquale
After hearing a very interesting discussion between Jay Sekulow and Kenneth Star on the “Bong Hits for Jesus” case, I had a few thoughts.
1) This case strikes me as the reductio ad absurdum of the classic “liberal autonomy” case for free speech. The plaintiff by his own admission has virtually no message except for “I want to show that I can exercise my free speech rights” . . . begging the great question posed by John H. Garvey in his book What are Freedoms For? As Garvey argues,
We should understand freedom . . . as a right to act, not a right to choose; and furthermore, we should view freedom as a right to engage in actions that are good and valuable. This may seem obvious, but it inverts a central principle of liberalism–the idea that the right is prior to the good.
2) Given the ambiguity of this message, Starr tried to make the case about an admin law issue; who is to decide a) whether a student’s speech is part of a school activity and b) whether the student’s message contradicts the school’s educational mission?
3) Expect the question raised by 2a to be increasingly important as schools start scouring MySpace and other social networking sites for objectionable speech. Consider this suspension for a YouTube video: “A model student is in court this week over a 40-day suspension for posting a mocking in-class video to YouTube of ‘Mongzilla’, a high school english teacher.” The administration is careful not to say that the speech itself is being punished, but rather, that the suspension “was punishment for the disruption created by the students secreting a video camera into [the teacher's] class and dancing in a mocking, disrespectful manner while her back was turned.”
4) Following Garvey (and perhaps Collins and Skover), I think cases like Mongzilla & Bong Hits can be distinguished from more protectible advocacy. The former seem to be more about defiance than a real message. The students involved could learn a lot from Martin Buber’s basic idea of stressing “mutual, holistic existence without qualification or objectification of the other.” Perhaps the old “speech/conduct” distinction will prove useful here.
May 23, 2007 at 2:36 pm
Posted in: First Amendment
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Responses (5)
Kevin Jon Heller - May 23, 2007 at 6:14 pm
When did “defiance” stop being a “real message”? When Cohen took off his jacket?
Howard Wasserman - May 24, 2007 at 8:01 am
I am not sure Bong Hits is any more the reductio than Cohen, Hustler, or Fraser (student sexual double-entendres in a high school assembly speech). Perhaps there was more of a message there. But the latter two cases, in particular, seem more about defiance and showing what you can (try to) get away with than any “meaningful” message.
Update on Mongzilla: http://seattlepi.nwsource.com/local/316793_kentridge23.html
A federal district judge denied the student’s request for a TRO. The judge accepted the school’s argument that the punishment was for the disruptive in-class depicted in the video, thus not protected by the First Amendment. The judge specifically pointed to the student’s lewd and sexually suggestive gestures and gyrations towards the teacher (all behind her back) as unprotected disruptive behavior.
Such ex-post use of the disruption standard is troubling to me. No one in authority at the school knew about the inappropriate classroom behavior until some weeks AFTER it occurred. And there is no evidence that there was, in fact, any such disruption. The school (which only learned of this behavior because of the video) is using the video (i.e., speech) to decide that this conduct must have caused a disruption at the time, so it cna go back and suspend the student after the fact. That seems to blur further the line between disruption and speech.
Frank - May 24, 2007 at 9:24 am
I agree that the line-drawing may be tough. Also, Howard’s point on the post-hoc use of the behavior is troubling.
But I still think that the speech behind Cohen/Tinker/Hustler is part of a larger political worldview than the Mong/Bong cases. Mong/Bong are about a small group’s decision to mock the school. The others comment on larger themes.
If anything can be a message, then why not a refusal to do homework? Can’t that just be reconfigured as “this is my First Amendment right not to speak, sending a message that it is immoral to comply with an educational apparatus designed to sort us into different classes and train us for docility in the face of exploitation”?
The idea that anything can be a message can get out of hand pretty quickly.
Howard Wasserman - May 24, 2007 at 12:29 pm
But for most high school students, the school IS their world and their commentary on it (mocking or otherwise) is commentary on their political themes and political worldview. Mary Beth Tinker is an admirable exception from a much different political time and place.
There always has been a tension between the liberty recognized in Barnette and compulsory education. If the school cannot compel students to salute the flag, then why should it be able to compel students to read Slaughterhouse Five or discuss sexuality in class or write a report on evolution? Schools struggle with this all the time in the face of parental requests for opt-outs from assignments. I am not sure off-hand if any First Amendment scholars have tried to resolve the tension, but I imagine it has something to do with how core something is to the school’s educational mission. An admittedly tough line, I know.
Frank - May 24, 2007 at 6:48 pm
The idea that the “school is their world” sounds both accurate and frightening.
Your point on Barnette is fascinating, and I hope someone does some scholarship in that direction, particularly given museums like this:
http://www.nytimes.com/2007/05/24/arts/24crea.html?em&ex=1180152000&en=3fce574910e89398&ei=5087
But I still hold to this idea from Stevens in a concurring opinion in the Safeco case:
“the ‘signal’ doctrine mandates a lowered level of protection for expression that ‘calls for an automatic response to a signal, rather than a reasoned response to an idea.’”
from Tribe, Const. Choices, p. 200.
I admit, Tribe is critical of this doctrine.
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