Smart v. Stupid

Today’s battle for power is between smart and stupid.

Free Speech is dead

Posted on | July 19, 2010 | 3 Comments

It was killed by the conservative court.

You probably never heard of Dave Weigel, a short-timer at The Washington Post who was recently fired for expressing his personal opinion about conservatives (like Matt Drudge) in private emails. But his firing marks the final nail in the coffin for freedom of speech in America. His private viewpoints had never shown up in his writing for the paper – it turns out that most of the conservatives he wrote about thought he was one of them. But when his personal opinions came out, The Post (a once great defender of the First Amendment) caved to criticism, offering up a silly excuse about how he couldn’t cover conservatives when he felt so negatively about them. I suspect this principle comes as a shock to the Post’s crime reporters who, I’d bet, harbor some negative feelings about both murderers and rapists.

First_amendment_area_Muir_Woods-wikimedia-brandt luke zorn In the end, free speech didn’t die because of Federal Government censorship. The Supreme Court simply empowered others to do the job. It’s not even clear that they intended to kill free speech. But ruling by conservative ruling, the court has enabled the punishment of individual expression. Piece by piece, forty years of court rulings have stripped the free from free speech and eviscerated the First Amendment. You can still say whatever you want, but you better expect to pay for the privilege, maybe heavily. Maybe with your career.

I’ve never met Dave Wiegel, by the way, and I was never particularly taken by his writing. I can say he did a bang-up job of keeping his personal views out of his work.

First they came for the children…

The slippery slope that led to his firing began many years before his birth — in 1969 to be precise — when college students (and later high school students) began wearing black armbands to protest the Vietnam War. Previously, such armbands were the province of funerals, so you can see the consternation this might have caused to the kill-the-commie-gooks crowd. When a high school student was suspended for wearing his black band, the highest court of the land found his First Amendment rights were infringed. In Tinker v. DeMoines, the court offered,

“First Amendment rights… are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate.”

They further found,

“In order for… school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was… more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

That all sounds right enough doesn’t it? But in the same ruling, the court also let a mangy cat out of the bag, saying,

“On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools”

In doing so, they codified the notion that social order might trump free speech even when the theater isn’t on fire.

The decision protected the free speech rights of students, but the language put those same rights in jeopardy. Now fast-forward to 1986 and the case, Bethel School District v. Fraiser. The high school student, Matthew Fraiser made a 129 word campaign speech filled with sexual double-entendre (but nothing more) at a student government assembly. He was punished under the school district’s prohibition of “disruptive conduct.” Citing Tinker v. DeMoines as precedent, the Reagan-era Supreme Court found the school district within its rights, drastically altering the course of freedom of speech with the utterance, “the determination of what manner of speech is inappropriate properly rests with the school board.”

In that short phrase, the court gave a non-judicial entity the right to summarily prohibit both speech and expression. It also gave away the right to judge what speech is protected and what speech is not. In other words, it gave away both the protections of the First Amendment and the due process of its enforcement.

The perversion of civics was fulfilled in the following years. By 2004, one third of high schoolers would believe that the First Amendment goes too far in protecting free speech. One in five believed musicians should not be allowed to sing songs that others found offensive. Over one-third believed newspapers (like the venerable Washington Post) should be subject to government approval of what they publish. Today, all high school students take for granted that they read a censored school newspaper. They have been socialized to accept censorship without complaint.

These are the civics lessons of today. Preparing for citizenship is no longer the goal, conformity has replaced it. And conformity is proscribed by the pursed-lip prigs in principal’s office. Sadly, they have the law – and stare decisis — on their side. A few discipline lovers – after all that’s what the principal job often attracts – can enforce any prohibition on free speech that suits their personal politics. Today, they routinely do, citing merely a preemptive guess that the speech would be “disruptive.”

Once we let free speech become subject to exception, it was only a matter of time before it became so expensive that it withered, and then died. It’s not hard to draw a bright, direct line from denying First Amendment rights to high school students to Dave Weigel’s firing for after-hours personal speech. Next week I’ll do just that.

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