Tuesday, March 20, 2007

Morse and the Juneau School Board et al. v. Frederick

It has been a while since I have written on a Constitutional issue, so let me briefly go over the rules.

This is not a blog about what the law does or does not say. I am not a Constitutional lawyer and I have no special training in that area. Okay, fine, I had a strong emphasis in philosophy of law while I was studying ethics, and took a few History of the Constitution classes. I still know less about constitutional law than I do about moral theory.

This is a blog about what the law should or should not say. If there is a gap between what the law does say and what the law should say, then this gap is filled by unjust law – law that ought to be changed.

I object to the practice, which is far too common, of deciding what one wants the law to say, then turning to law to find evidence for what one desires. It is a practice that involves cherry-picking the data, giving strong emphasis to legal precedent that supports one’s desired conclusion, while ignoring as aberrations any precedent that conflicts with one’s desired results. There is simply no basis for the assumption that the law says what one wants it to say.

So, this essay has nothing to do with whether the case before us involves an instance of constitutionally protected free speech.

That case is Morse and the Juneau School Board et al. v. Frederick (06-278). It concerns a high school student, Joseph Frederick, who presented a banner saying, "bong hits 4 Jesus" at an event where the Olympic torch was moving through the city. The principal, Deborah Morse, told Frederick to remove the banner. The student refused, which lead Morse to suspend Frederick for 10 days for violating a school policy against promoting drug use.

The Right to Free Speech

In this blog, I have employed a principle that states that the only legitimate response to words are words said in response and private actions. Violence is not an appropriate response to mere words. (Note: There are, of course, exceptions – revealing military secrets, libel, slander, clear and present danger, and invasion of privacy, but none of them figure in to this case.)

If this is truly an important principle, then it is one that students should be learning in school. One useful way for students to learn this principle is to see it applied in the school setting. That is, the school itself should be a place to honor the principle to never respond to words alone with violence, just as the school honors moral prohibitions against killing, rape, theft, lying, and cheating.

Clear and Present Danger

Frederick was ultimately charged with “promoting drug use.” This is an example where the “clear and present danger” principle applies. If I am a mobster, and I say to my hit man, “Kill him,” my right to free speech cannot protect me from a charge of murder. The situation is one in which I am the proximate cause of the victim’s death. However, if I were to post on my blog, “somebody should kill that man,” where my words command nobody in specific, then I am not morally guilty of his murder.

This principle would also rule out the right to make actual threats against an individual, and defend oneself on the basis of “free speech.” If I were to point a gun at you, you would be within your rights to consider me a threat and to act accordingly. If I say, "I am going to get my gun and fill you with so many holes they can use you for a sieve," you would still be wise to take me at my word and take steps to defend yourself – or to call upon the state to defend you.

Frederick’s banner, as far as I can tell, was not a command to any group of people to take up drug use. Those who read the sign still had every freedom to accept or reject its prescription. There was no “clear and present danger”, and no reason to hold Frederick morally responsible for any drug use that might be attributed to his sign. In fact, as far as I know, no attempt was made to actually accuse Frederick of ordering any particular incidence of drug use.

Speech as Violence

There are situations where the speech itself is an act of violence, and as such can be punished. The distinguishing trait here is that the speaker is to be condemned regardless of the content of his beliefs.

Examples of this involve speech acts that are disruptive, such as an individual standing and shouting slogans in a crowded theater or in a classroom. By filling the room with noise, the speaker is engaging in an act of sonic vandalism. It does not matter what he is saying, others have reason to silence him.

In the case of the "Bong Hits 4 Jesus" poster, I may be able to make the case that Frederick’s intention was to be disruptive. His act was not unlike that of a man standing and shouting in a theater or breaking out in song in the middle of a class lecture.

Such a charge would not stick if others were allowed to have banners as well. This would make it obvious that the objection to Frederick’s sign was based on content, rather than on the basis of inhibiting disruptive behavior.

Besides, as a matter of fact, Frederick was not suspended for causing a disturbance at a school event. He was suspended for “promoting drug use.” This makes it obvious that he was punished because of the content of his speech – that a different statement would have gone unpunished.


I deny that offense is a legitimate reason to censor speech. If a person is going to live in a free society, then he should be prepared to be offended from time to time. That is the cost of freedom. The only way to remove offense is to destroy freedom. And even that is offensive.

This is another important lesson that high school students should be learning. I would suggest that our society would be much better, all things considered, if more of our citizens had learned that offensive speech does not justify a violent response – that the “words for words” principle applies in this case.

For example, let us assume that a student were to wear a T-shirt that contains the first President Bush’s statement, “I don't know that atheists should be considered as citizens, nor should they be considered patriots. This is one nation under God.” Naturally, I would consider this to be ‘offensive’. However, more important than my wish not to be offended is the principle of refusing to respond to words alone with violence or government censorship. A more legitimate, and more educational response would be to explain why this is a bigoted and hate-inspired sentiment that is a throw-back to the 1600s.

Some people are making the claim that the right to freedom of religion and the right to freedom of speech implies a prohibition on ever telling somebody, “You’re wrong; and your mistakes are going to get innocent people maimed and killed.” If this becomes our policy, then we are saying that those innocent people being maimed and killed have less of a right to avoid death and injury than certain religious groups have in avoiding offense.

The position is inherently contradictory. If there is a right to free speech, then there is a right to say, “Those people are wrong and their mistakes are going to cost innocent people their lives, their health, and their quality of life.” If this type of statement is banned, then free speech no longer exists.

The Teacher

I imagine myself a teacher. I have given my students an assignment to give a speech on any topic of interest to him or her. What limits are there (if any)on what a student may say?

The limits I spoke of above seem to cover the options. No student may threaten another student or be disruptive in his speech act. However, a student may defend whatever position he pleases, even if some find his position offensive. I would invite any student who wanted to respond to the speech with words to do so. I would even allow them to argue the position that, “Any who would say such a thing is a contemptible human being lacking even a trace of moral decency,” or words to that effect. I would remind the students that they are free to use this behavior to help them to determine who to befriend, who to eat lunch with, who to trade with, and the like.

However, I would make it clear that offensive speech must not be met with violence.

Setting an Example

One of the slogans that people will speak about in a case like this is that speech cannot disrupt the school’s mission or function. This is a principle that determines when an act of speech is, itself, an act of violence. However, one of those missions should clearly be to teach the students the scope and limits of a right to freedom of speech – that violence is not a legitimate response to the content of somebody’s speech. This is a mission that a school can best accomplish by not using violence against the content of somebody’s speech. Otherwise, they are setting a very poor example.

That is how free people live, and maintain their freedom, while also maintaining peace.

1 comment:

Anonymous said...

I have nothing to add to this discussion. Your article was so thoughtful and thorough that I don't even know if anything COULD be added to this discussion (of course, I could be mistaken). You brought up and demolished every counterargument I can think of. Very well done!