A SCHOOL EDUCATOR OFFERS THOUGHTS ON THE MEANING OF FREE SPEECH

Every year as I teach history, I want my students to know and value
the rights they've inherited as citizens. Prominent among those
rights is the freedom of speech, a freedom I'm exercising right now.
I agree with Mr. Madison, the first amendment's author, that free
speech is "one of the great bulwarks of liberty."

We examine what the amendment says, which is simply that the
government "shall make no law abridging the freedom of speech." Then
we discuss what Mr. Madison and his fellow framers intended those
words to mean. Their intent is essential because according to Mr.
Madison, if you "separate text from historical background...you will
have perverted and subverted the Constitution."

It isn't hard to determine what the framers were thinking about.
They'd just fought a war against a government that had forcibly
denied them the right to criticize it, ignored their petitions for
change, and frequently punished the critics and petitioners. Their
amendment was talking about a citizen's right to speak his opinions
about public issues without fear of a magistrate or bayonet.

Had you asked Mr. Madison what his amendment had to say about
pornography, making trousers out of the flag, and other equally
weighty modern first amendment issues, I suspect he would've been
mystified by your question.

When he described free speech as "the only effectual guardian of
every other right," he wasn't talking about idle chatter. He meant
"the right of freely examining public characters and measures,"
exchanging "knowledge of the comparative merits and demerits of the
candidates for public trust," and the "equal freedom" of "examining
and discussing these merits and demerits." Freedom of speech for
Jefferson involved the "spread of information." George Washington had
in mind discussing issues "which may involve the most serious and
alarming consequences that can invite the consideration of mankind."

I doubt they would've included "Bong hits for Jesus" among those
serious and consequential issues. That's the free speech lawsuit
currently before our Supreme Court. Back in 2002 a high school senior
named Frederick stayed home from school one morning. That afternoon
students assembled outside, complete with band and cheerleaders, to
witness the passing of the Olympic torch down the street in front of
the school. Mr. Frederick showed up for the event, during which he
unfurled a sizable banner labeled in duct tape that read "Bong hits
for Jesus." The principal viewed the banner as a violation of the
school's federally-mandated anti-drug policy. When Mr. Frederick
refused to lower it, she removed the sign and suspended him.

This being modern America, he promptly sued for monetary damages. The
first court found for the school, the second for Mr. Frederick, and
the case recently landed in front of our nine Supreme Court justices.

The court has ruled in the past that students "don't shed their
Constitutional rights at the schoolhouse door." The court has also
allowed that a school can forbid speech which is "inconsistent with
its basic educational" mission or which "materially and
substantially disrupt[s] the work and discipline of the school." The
principal maintains that the sign violated the school's anti-drug
policy, that students were outside for a school activity, and that
she, therefore, had the authority and obligation to remove the banner.

Mr. Frederick contends that he wasn't technically on school property,
and that his banner was "certainly not intended as a drug or
religious message," a dubious assertion since a bong is a device for
smoking marijuana. He claims the sign's words were "lacking in any
particular meaning other than to provoke."

In short, the school says the case is about drugs. Mr. Frederick says
it's about his "inalienable right of free speech." I think they're
both wrong. This case revolves around whether being a jerk is covered
by the first amendment.

I'm not saying this because I disagree with Mr. Frederick. Lots of
disagreeable statements are covered by the first amendment. I'm
saying this, in part, because Mr. Frederick's words, by his own
description, aren't speech, which by definition and precedent has to
have meaning. You can't simultaneously maintain that you're innocent
of violating drug rules because your statement has no meaning,
meaning it isn't speech, while you also argue that your meaningless
statement is protected speech.

More to the point, we can't afford to confuse an informative
statement of deeply held convictions, whether spoken by adults or
students, with the actions of a self-absorbed adolescent whose
admitted sole purpose was to provoke his school's principal and get
his banner on television. Nobody's talking about locking Mr.
Frederick up or suing him for damages. But if he doesn't choose to
live within his school's rules, he's perfectly free to stay home. If
we don't equip principals and teachers with the power to control
student behavior, especially intentionally obnoxious behavior, then
we have no right to expect our schools to be places where our
children are safe and their educations undisrupted.

Mr. Frederick isn't the only one with rights. And in this case, his
don't come first.

- - Peter Berger teaches English at Weathersfield Middle School. Poor
Elijah would be pleased to answer letters addressed in care of the
editor.