First Amendment Confusion

Earlier this week a foreign-born college student was arrested for posting threats to kill President Bush. As I blogged here, a number of rightie bloggers immediately jumped to the conclusion that the student was a “liberal” (in fact, the news story didn’t identify the student’s political orientation) and predicted that liberals would jump to the defense of the accused student’s free speech rights, because that’s what liberals “always” do.

When the predicted liberal tide of outrage against the student’s arrest didn’t materialize, this guy wrote, “Well of course you’re not going to openly after we preemptively accuse you of it.” Well of course, he couldn’t possibly be mistaken about what “liberals” always do, huh? (Off topic, but this post by the same blogger reveals a certain, um, confusion about what liberals actually believe.)

In fact, long-established case law says that speech inciting violence — the “clear and present danger” test — is not protected by the First Amendment. If the student clearly was seriously attempting to incite presidential assassination and not just joking (I haven’t seen what he wrote), then he’s going to have a hard time defending himself on First Amendment grounds.

Also earlier this week, Glenn Greenwald commented on the First Amendment rights of journalists who report on something the government is doing secretly that appears to be illegal. In this case, a conservative ranted that publishing a news story “against the wishes of the president” amounted to treason.

This confusion could be resolved, I believe, by reassuring the ranter that this is still the United States of America and we have not, in fact, been annexed by North Korea. Not yet, anyway.

Different day, different story: Some not-liberal bloggers are complaining that the First Amendment rights of high school students were violated — Eugene Volokh wrote,

Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, “Be Ashamed, Our School Embraced What God Has Condemned,” and on the back, it said “Homosexuality is Shameful.” The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.

Harper’s speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation” — which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations — are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates “the rights of other students” by constituting a “verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development.”

You can read the majority decision in Harper v. Poway Unified School Dist. here. If you read it you might notice what Volokh left out — prior incidents of physical altercation in the school caused by gay-baiting. From the decision:

[Assistant Principal] Antrim believed that Harper’s shirt “was inflammatory under the circumstances and could cause disruption in the educational setting.” Like LeMaster, she also recalled the altercations that had arisen as a result of anti-homosexual speech one year prior. According to her affidavit, she “discussed [with Harper] ways that he and students of his faith could bring a positive light onto this issue without the condemnation that he displayed on his shirt.” Harper was informed that if he removed the shirt he could return to class.

When Harper again refused to remove his shirt, the Principal, Scott Fisher, spoke with him, explaining his concern that the shirt was “inflammatory” and that it was the School’s “intent to avoid physical conflict on campus.”

Harper actually demanded that he be suspended; the Principal refused to do that, and instead just detained the high schooler in his office the remainder of the day to keep him out of trouble.

Harper sued, and the district court concluded that “balancing the needs of the School to keep all their students safe coupled with the foreseeable vision that other students may feel free to exhibit these types of expressions that would interfere with the work of the school and violate the rights of others against [Harper’s] interests does not tip the scales sharply in [Harper’s] favor.”

The judges went on to cite prior case law, such as Tinker v. Des Moines School District 393 U.S. 503 (1969) and Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986). Both cases deal with speech that disrupted school discipline. The primary issue was not, as Volokh suggested, speech that hurt people’s self-esteem, but speech that was causing students to become unruly and engage in shoving matches in the hall. The title of Volokh’s post — “Sorry, Your Viewpoint is Excluded from First Amendment Protection” — is, IMO, fundamentally dishonest, as is this post by another blogger, which whines that the school only banned the T-shirt because it was anti-gay.

In the past schools have banned all sorts of “speech,” including tattoos and gang colors, because the “speech” was causing discipline problems. A couple of weeks ago Volokh commented on a California school district that banned flags and patriotic clothing, U.S. and Mexican, because the students were using the symbols to taunt each other. The school said the ban was temporary; I take it some discipline problems erupted after passions were inflamed by the immigration marches. Volokh complained that California law says “high school districts can’t restrict display of the American or Mexican flags just on the theory that it might be used in a threatening (or ‘harass[ing],’ whatever exactly that means) way — it can only restrict such display that is itself threatening or harassing.” But I infer the school district was able to demonstrate there was a clear and present danger of threatening and harassing going on, not just hypothetical threatening and harassing.

I’m old enough to remember some damnfool arbitrary school clothing rules; my public school district wouldn’t let girls wear pants, for example. My high school principal pronounced a ban on T-shirts that said anything, including “Have a Nice Day” or “Visit Miami Beach.” Some situations are hard to call, I’m sure. Some principals are more authoritarian than they need to be. But it’s fairly obvious Harper Tyler was trying to incite something that wasn’t in the curriculum. (See also Jill at Feministe.)

Here’s some more context that may or may not muddy the waters — Tyler wore his T-shirt the day after the school’s Gay-Straight Alliance held a “day of silence.” Participating students wore duct tape over their mouths to symbolize the silencing effects of intolerance. They “spoke” in class through a designated representative. With the permission of the school, the Alliance had put up posters to raise awareness of harassment. A series of “incidents and altercations” had occurred when the Alliance held a day of silence the year before. So, this rightie blogger asks, if the school is so worried about “disruption” why would it allow the Gay-Straight Alliance to hold its protest against intolerance if it had incited disruption the year before?

This is not a question to dismiss out of hand. I’d like to see the posters and observe the students to get a better sense of what went down before I formed a firm opinion. If in fact the posters were not inflammatory and only conveyed the message “please be tolerant of us,” should they be censored because they might incite a violent reaction in bigoted students? In other words, in the interest of discipline, should speech requesting tolerance, and that is not insulting to another group, be treated the same as speech that is hateful and derogatory? If so, is that not giving in to the bullies?

On the other hand, if I were a teacher I’m not sure I’d put up with the tape-over-the-mouth stunt in classrooms if it got in the way of teaching. Maybe real teachers would disagree.

Seems to me the school has three choices. It can ban all displays of opinion on clothing and posters, including “Have a Nice Day.” It can exercise no restrictions and only intervene after fistfights have started. Or it can exercise critical judgment and restrict speech that seems to be intended to start fights. And in the case of the latter, judgments will be subjective and some people will always disagree with the call.

Frankly, I’m glad I’m not a school principal.

Another Liberal Hoax

There’s a fascinating article on global warming by Mark Hertsgaard in Vanity Fair. Catch the blurb:

The Queen of England is afraid. International C.E.O.’s are nervous. And the scientific establishment is loud and clear. If global warming isn’t halted, rising sea levels could submerge coastal cities by 2100. So how did this virtual certainty get labeled a “liberal hoax”?

Apparently Queen Liz tried to sic the Poodle on Bush last year.

At the time of his meeting with the Queen, Blair was being attacked on climate change from all ideological sides, with even the Conservatives charging that he was not doing enough. …

… It was no secret that Bush opposed mandatory emissions limits, but Blair, who had risked his political future to back the deeply unpopular war in Iraq, was uniquely positioned to lobby the president. Bush owed him one. At the same time, Blair needed to show his domestic audience that he could stand up to Bush, that he wasn’t the presidential “poodle” his critics claimed.

Yet the Poodle proved to be toothless, partly because he was distracted by the July suicide bombers in London, and the G8 summit failed to get Bush to budge. So it was a terrible irony when Katrina struck the Gulf seven weeks later.

It cannot be known for certain if global warming caused Katrina.

The scientific rule of thumb is that one can never blame any one weather event on any single cause. The earth’s weather system is too complex for that. Most scientists agree, however, that global warming makes extra-strong hurricanes such as Katrina more likely because it encourages hot oceans, a precondition of hurricane formation.

“It’s a bit like saying, ‘My grandmother died of lung cancer, and she smoked for the last 20 years of her life—smoking killed her,'” explains Kerry Emanuel, a professor at the Massachusetts Institute of Technology who has studied hurricanes for 20 years. “Well, the problem is, there are an awful lot of people who die of lung cancer who never smoked. There are a lot of people who smoked all their lives and die of something else. So all you can say, even [though] the evidence statistically is clear connecting lung cancer to smoking, is that [the grandmother] upped her probability.”

Just weeks before Katrina struck, Emanuel published a paper in the scientific journal Nature demonstrating that hurricanes had grown more powerful as global temperatures rose in the 20th century. Now, he says, by adding more greenhouse gases to the earth’s atmosphere, humans are “loading the climatic dice in favor of more powerful hurricanes in the future.”

Yet American news media didn’t say much about the global warming-Katrina connection.

The online article describes illustrations that can be viewed in the print issue showing the potential effects of global warming —

In New York, it would leave much of Lower Manhattan, including the Ground Zero memorial and the entire financial district, underwater. La Guardia and John F. Kennedy airports would meet the same fate. In Washington, D.C., the Potomac River would swell dramatically, stretching all the way to the Capitol lawn and to within two blocks of the White House.

A number of scientists are quoted who say that it’s too late to stop global warming. But there is still much that can be done to reduced its effects if we start working on it now. One scientist said “We still have a choice between pain and disaster.” However …

Unfortunately, we are getting a late start, which is something of a puzzle. The threat of global warming has been recognized at the highest levels of government for more than 25 years. Former president Jimmy Carter highlighted it in 1980, and Al Gore championed it in Congress throughout the 1980s. Margaret Thatcher, the arch-conservative prime minister of Britain from 1979 to 1990, delivered some of the hardest-hitting speeches ever given on climate change. But progress stalled in the 1990s, even as Gore was elected vice president and the scientific case grew definitive. It turned out there were powerful pockets of resistance to tackling this problem, and they put up a hell of a fight.

And you can guess who we’re talking about — the VRWC and Big Oil. Big Oil spends millions every year funding organizations that downplay the problem, and right-wing media parrots what the organizations say.

The public discussion about climate change in the U.S. is years behind that in Britain and the rest of Europe, and the deniers are a big reason why. “In the United States, the Chamber of Commerce and National Association of Manufacturers are deeply skeptical of climate-change science and the need to reduce greenhouse-gas emissions,” says Fiona Harvey, the environment correspondent for the Financial Times. “In Britain, the equivalent body, the Confederation of British Industry, is absolutely behind the science and agrees on the need to cut emissions. The only differences are over how to do that.”

America’s media coverage is also well behind the curve, says Harvey. “In the United States you have lots of news stories that, in the name of balance, give equal credence to the skeptics. We don’t do that here—not because we’re not balanced but because we think it’s unbalanced to give equal validity to a fringe few with no science behind them.”

Ah-HEM. As Paul Krugman has said, if the Right wants to believe the earth is flat, the headlines would declare “Shape of Earth–Views Differ.”

Toward the end of the article we learn that the rest of the world — plus many state and local governments in America — have pretty much decided to ignore the Bush Regime and charge ahead with greenhouse gas-reduction programs. At the same time, investors are pressuring Wall Street to take the problem seriously. In fact, Bushies seem to be the last holdouts on the planet.

“It is very clear that Congress will put mandatory greenhouse-gas-emission reductions in place, immediately after George W. Bush leaves office,” says Philip Clapp of N.E.T. “Even the Fortune 500 is positioning itself for the inevitable. There isn’t one credible 2008 Republican presidential candidate who hasn’t abandoned the president’s do-nothing approach. They have all adopted the approach the rest of the world took at the Montreal talks—we’re moving forward, you’re a lame duck, and we have to deal with it.”

U.S. presidents used to be regarded as “the leader of the free world.” Ol’ Dubya blew that one out of the water, didn’t he?