‘See you in court’

Reacting to the recent New York Times commentary and its unnamed administration author, President Trump demanded “the Times must, for National Security purposes, turn him/her over to the government at once!” That the president seems comfortable with the chillingly totalitarian sound of that summary repeal of the First Amendment makes it doubly chilling.

At the same time, we’ve been witnessing the imminent confirmation of a Supreme Court justice. Regardless of the nominee’s qualifications, or disqualifications, and despite some individual Republican senators’ sincere attempts at fairness in the process, the hearings have displayed what happens when politics becomes a winner-takeall proposition, even when the country is at best evenly divided in its opinions, and arguably less inclined to the position advanced by the party currently in power.

The First Amendment and the courts figure in life at school. Every year in history class, I explain that the First Amendment doesn’t mean you can say whatever you want whenever you want to. It was crafted by men who’d just fought a war in part for the right to speak their minds on political issues and criticize their government without fear of muzzling or reprisal from that government. Regardless of how courts have interpreted it in our time, it wasn’t crafted so I could wear an obscene T-shirt, make trousers out of the flag, or demand government funding for my performance art.

It wasn’t crafted so a self-absorbed high school senior could sue his school a few years ago and tie up the judiciary all the way to the Supreme Court over his “inalienable right” to display a “Bong Hits for Jesus” banner at a school activity after he’d played hooky that morning. When his principal made him remove the banner, this civil libertine indignantly claimed the protection of Mr. Madison’s amendment. When his principal argued in court that aside from the need to maintain discipline in a school, the reference to bong hits violated federally mandated school anti-drug policy, our 21st-century Patrick Henry countered without blushing that the drug argument didn’t apply because his words were “lacking in any particular meaning.”

Freely running your mouth isn’t the same thing as free speech, which common sense and the courts have defined as words that do have meaning. If the ravings of an adolescent narcissist are what we deem a worthy use of the First Amendment, then if I were Mr. Madison, I’d consider taking my amendment back.

In another student-initiated case, august federal judges ruled against less august school district officials. The case revolved around “I Love Boobies” breast cancer bracelets and whether middle schools could prohibit students from wearing them. For the sake of accurate reporting, the word “love” is represented by a heart on the actual bracelets.

In a stunning turn of events, the school district officials in this case displayed more common sense than the federal judges. Given school officials’ overall track record for common sense, this did not reflect well on the judicial branch. Displaying less common sense than education officials is like coming in second to the Marquis de Sade in a morality contest.

The court upheld what it deemed the students’ First Amendment free speech rights to wear the bracelets and ordered the school to allow them. The judges ruled that school officials couldn’t outlaw the slogan as “vulgar and inappropriate for middle school students.” According to the judges, the slogan, while “ambiguously lewd,” was “not plainly lewd” and also expressed an opinion about a “political or social issue.”

The court considered the case in the light of an earlier “lewdness” ruling. Using an extended metaphor, a speaker at a school election assembly had likened his candidate to an erect penis, employing words like “firm,” “nail,” and “climax” but never actually saying “penis.” In that case, the Supreme Court upheld the school’s right to punish the speaker for the lewd implications of his speech, even though supporting a candidate for office is unambiguously political.

According to the judges, “I Love Boobies” bracelets are protected by the Constitution because middle school students could “plausibly” interpret the slogan in its social or political context, a conclusion which could only be drawn by someone who has never been or known a male middle school student. The court did allow that schools might be permitted to restrict bracelets reading “I Love Tits” on the grounds that “tits” constitutes a “patently offensive reference to sexual organs,” something “boobies” apparently doesn’t.

The 107-page decision, which the Supreme Court chose not to overturn, appears to leave schools without recourse when students, prompted by their social and political consciences, begin scrawling “I Love Boobies” across their T-shirts and class notebooks. It also leaves unsettled what we’ll do when students start wearing bracelets expressing their concern about testicular, vaginal and rectal cancer.

Schools are expected to manage children all day long and increasingly required to bear responsibilities once borne by parents, even as many parents abdicate those responsibilities. To deal with children by the dozens and hundreds, teachers and principals need at least a fraction of the authority that parents have when they deal with children one or two at a time. If we deny schools that authority, it’s irrational to expect schools to be safe and decent, and immoral to blame teachers and principals when schools aren’t.