COURT GETS IT RIGHT IN FREE-SPEECH RULINGS

There are few areas where I think common sense is more sorely lacking
than in our public debates over free speech, and there's no better
proof than two recent Supreme Court decisions.

But before we go there, let me state plainly where I'm coming from.
First and foremost: The more overtly political the speech is, the more
protected it must be. The First Amendment was not intended to protect
pornographers, strippers or the subsidies of avant-garde artistes who
think the state should help defray the costs of homoerotica and
sacrilegious art. This isn't to say that "artistic" expression doesn't
deserve some protection, but come on. Our free-speech rights were
enshrined in the Constitution to guarantee private citizens -- rich
and poor alike -- the right to criticize government without fear of
retribution.

Now, there are common-sense exceptions to this principle. Not only can
the state ban screaming "fire!" in a crowded movie theater, it can ban
screaming "Vote for Cheney in '08!" in a theater, too (or, more
properly, it can help theater owners enforce their bans on such behavior).

A better example of an exception would be schools. Students can't say
whatever they want in school, whenever they want to say it, because
schools are special institutions designed to create citizens out of
the malleable clay of youth. Children aren't grown-ups, which is one
of the reasons why we call them "children."

Making citizens requires a little benign tyranny, as any teacher (or
parent) will tell you. If this weren't obvious, after-school detention
would be treated like imprisonment and homework like involuntary servitude.

For a long time, we concluded the best way to protect political speech
was to defend other forms of expression -- commercial, artistic and
just plain wacky -- so as to make sure that our core right to
political speech was kept safe. Like establishing outposts in hostile
territory, we safeguarded the outer boundaries of acceptable
expression to keep the more important home fire of political speech
burning freely. That's why in the 1960s and 1970s, all sorts of stuff
- -- pornography, strip clubs, etc, -- was deregulated by the Supreme
Court on the grounds that this was legitimate "expression" of some
sort.

Also, in 1969, the Supreme Court ruled in Tinker v. Des Moines, that
students don't "shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate."

This always struck me as preposterous. Of course students shed some of
their rights at the schoolhouse gate. That's the whole idea behind the
concept of in loco parentis. Teachers and administrators get to act
like your parents while you're at school. And parents are not required
to respect the constitutional rights of their kids. Tell me, do
hall-pass requirements restrict the First Amendment right of free
assembly? Don't many of the same people who claim that you have
free-speech rights in public schools also insist that you don't have
the right to pray in them?

Still, such buffoonery would be pardonable if the grand bargain of
defending marginal speech so as to better fortify the protective
cocoon around sacrosanct political speech were still in effect. But
that bargain fell apart almost from the get-go. At the same moment we
were letting our freak flags fly when it came to unimportant speech,
we started turning the screws on political speech. After Watergate,
campaign finance laws started restricting what independent political
groups could say and when they could say it, culminating in the
McCain-Feingold law that barred "outside" criticism of politicians
when it would matter most -- i.e., around an election.

And that's why we live in a world where cutting NEA grants is called
censorship, a student's "Bong Hits 4 Jesus" sign is hailed as vital
political speech, and a group of citizens asking fellow citizens to
petition their elected representatives to change their minds is
supposedly guilty of illegal speech.

That is until this week. In one case, the Supreme Court ruled that a
student attending a mandatory school event can be disciplined by the
school's principal for holding up a sign saying "Bong Hits 4 Jesus,"
and in another it ruled that a pro-life group can, in fact, urge
citizens to contact their senators even if one of the senators happens
to be running for re-election. Staggeringly, these were close and
controversial calls.

Many self-described liberals and reformers think it should be the
other way around. Teenage students should have unfettered free-speech
rights, while grown-up citizens should stay quiet, like good little
boys and girls. Thank goodness at least five Supreme Court justices
disagreed.