FREE SPEECH VANISHING AT SCHOOL GATE

Court Extends Government Control Of Expression

In 1969, the U.S. Supreme Court famously declared that students do
not "shed their constitutional right to freedom of speech or
expression at the schoolhouse gate."

Maybe they don't shed them completely, but the Supreme Court has in
subsequent rulings made it clear that the memorable quote from Tinker
vs. Des Moines means less than it was thought to mean at the time. It
means even less following Monday's ruling in an Alaska student-speech case.

In a decision written by Chief Justice John Roberts and endorsed by
four other justices, the court declared its fealty to the concept of
free speech for students expressed in the 38-year-old Tinker
decision, which upheld the rights of Des Moines public-school
students to wear black armbands in protest of the Vietnam War. But
the court nonetheless ruled that Juneau-Douglas High School did not
violate a student's First Amendment rights when it suspended him for
exercising that right on a public street outside the school.

Monday's ruling is not entirely surprising, given how the court has
backtracked from Tinker over the past 20 years. But the court's
failure to give more serious consideration to First Amendment rights
of students is nonetheless disappointing, and suggests a new era of
increased acceptance by the court of government control of speech.

Roberts took pains to explain away Tinker, but his explanation boils
down to this simple principle: Students do not have the same
constitutional rights as adults under the First Amendment if they
advocate illegal activity in school.

In this case, the student was holding up a large banner during an
Olympic torch-bearing parade outside the school. The banner bore the
phrase "BONG HiTS 4 JESUS," which the school's principal judged to be
inciting students to break the law by smoking marijuana.

It's a fair question whether this was, in fact, a school-sponsored
event. But assuming, as the court does, that the school's authority
extends to a banner held up on a public street across from the
school, the question is whether the banner amounted to an incitement
of illegal activity by students.

The banner could be read in any number of ways. Even the majority of
the court admits the message was "cryptic." It hardly amounted to
incitement to lawbreaking that justified government punishment of a
student's free expression. The best take on that came from Justice
John Paul Stevens, writing in dissent: "Most students ... do not shed
their brains at the schoolhouse gate, and most students know dumb
advocacy when they see it."

Besides refusing to underestimate kids, Stevens showed the keenest
appreciation for the meaning of Tinker: "Censorship based on the
content of speech, particularly censorship that depends on the
viewpoint of the speaker, is subject to the most rigorous burden of
justification."

Instead, the court accepted without question the school officials'
conclusion that the student's speech was so offensive that it
deserved no First Amendment protection.

Using such a flimsy standard for assessing student speech, it is hard
to see how the Roberts court, had it been in place more than three
decades ago, would have ruled in favor of the Des Moines students who
lodged a quiet protest against a highly polarizing war.