"Liberty," said Learned Hand, "lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it."
Learned Hand was quite right — if people don't support basic legal norms like freedom of expression and due process of law, no legal systems will be sufficient to enforce those norms. They will wither. But how is the appetite for liberty born in our hearts? Some choose to believe that it is an inherent aspiration of humanity. I don't think that history, ancient or recent, supports that. Rather, I think that liberty is a cultural value, carefully cultivated by example and education. Good American citizenship is characterized by fidelity to shared taught values, and a willingness to support them and teach them to others.
Like any value, liberty can also be suppressed. People — especially young people — can be taught to scorn it.
Right now, the Shawano School District is Wisconsin is teaching students to scorn free expression. The Shawano School District, through its leaders, is teaching bad American citizenship.
Shawano High School has a student paper called the Hawk's Post. The Hawk's Post decided to run opinion columns, pro and con, on the subject of adoption by gays. Shawano High student Brandon Wegner wrote the column in opposition. The column — which you can see at Jack Marshal's post at Ethics Alarms — is nothing to be proud of. It's execrably written, it misquotes Jesus Christ, and it meanders like a drunkard. It also opens with a reference to Leviticus 20:13, suggesting that the Biblical penalty for homosexuality is death. It's a detestable column, from a journalistic perspective, from the perspective of this adoptive parent, and from the perspective of people like me who are very pleased that generational replacement is inexorably making people with such views rarer and rarer. The column is, in fact, so awful that I have a sneaking suspicion that it is a troll job. It is also, however, an archetypical example of a student opinion piece on a controversial topic.
The column apparently ran without incident until a local man named Nick Uttech — who is raising for kids with his partner — found out about it and complained to the school district. District officials listened to him respectfully, told him that the view in the column did not reflect the view of the district, and explained the district's stated values:
Shawano does have a policy on “Teaching about Controversial Issues,” which states, “differences in opinion are a continuing and important part of life in a democratic society.” The policy, according to the website, was approved in January 1999.
“It is, therefore, a responsibility of the school to help young people develop the skills of rational thought that are needed for an objective approach to a study of issues on which people differ,” according to the policy.
No, wait. Shawano School District didn't do that. Instead, the Shawano School District, through Superintendent Todd Carlson, went into full retreat from those principles:
The Shawano School District would like to apologize for a recent article printed in the Hawks Post newspaper. Proper judgment that reflects school district policies needs to be exercised with articles printed in our school newspaper. Offensive articles cultivating a negative environment of disrespect are not appropriate or condoned by the Shawano School District. We sincerely apologize to anyone we may have offended and are taking steps to prevent items of this nature from happening in the future.
According to one source, school officials asserted that the column constituted "bullying." Moreover, Liberty Counsel — which is now representing Brandon Wegner — claims (though the district apparently denies it) that Shawano officials made other troubling statements to Wegner in the course of confronting him about the column:
After Brandon wrote this article he was pulled into hours of meetings with school administrators and staff, without his parents’ knowledge. This caused him to miss exam preparation classes and at least one exam.
Brandon was hauled before the superintendent on charges that he had violated the school’s bullying policy. Superintendent Todd Carlson told him that the column “went against the bullying policy,” and asked him if he “regretted” writing it. When Mr. Wegner stated that he did not regret writing it, and that he stood behind his beliefs, Superintendent Carlson told him that he “had got to be one of the most ignorant kids to try to argue with him about this topic,” that “we have the power to suspend you if we want to” and that the column had “personally offended me, so I know you offended other people!”
Even leaving those alleged comments aside, the Shawano School District's approach to the controversy has taught terrible lessons of bad citizenship to its students. First, as Eugene Volokh points out, this is an unusually broad and unprincipled use of the term "bullying." If "bullying" means "expressing viewpoints that I find hurtful of offensive," then it becomes an utterly open-ended justification for censorship. Suicides of bullied young people are unspeakably tragic; they can only become more tragic if we cynically and crassly misappropriate them to justify suppressing speech we don't like in an orgy of ""think of the children!" self-justification.
Second, the district's actions seek to make students into moral cripples and bad citizens. The message is clear: citizens are entitled to look to the government to suppress messages that they don't like. Thus, rather than cultivating Learned Hand's appetite for liberty in the hearts of children, the district cultivates appetite for and tolerance of government control. What do you think Shawano School District's students will learn to respect — the words in Shawano's pro-speech policy, or the words in its ignominious retreat from that policy? Moreover, the district's actions teaches children that they have no responsibility in the marketplace of ideas other than reporting offensive speech to the government and shutting up. In fact, the foundation of our approach to free expression is the notion that the best response to ugly speech is more speech. Students who view gays as full and equal human beings — an increasingly large percentage, I'm happy to say — ought to engage in more speech in the student paper, telling Brandon Wegner that they find his views loathsome and reject them. Or they should say so in person — speech has social consequences, and ought to. If Brandon Wegner is widely shunned and scorned for his viewpoint, I suspect that the Liberty Counsel will see it as an injustice, but I won't — I'll see it as classic more speech response to detestable speech. We want students to feel free to respond to Brandon Wegner's speech in non-violent verbal and written ways, because we want them to grow up to respond to contrary viewpoints rather than run to the government and ask that they be suppressed. If we don't teach them that value, how supportive do you suppose they will be of free speech when they grow to adults?
I am sympathetic to the viewpoint that Brandon Wegner's column was vile and hurtful to anyone who is gay, or has gay loved ones or friends. But I am not sympathetic to the view that the interests of traditionally disparaged groups — like gays — are well-served by censorship. Exceptions to norms of freedom of expression, once forged, have always been imposed disproportionately against people with less power. Only a damned fool expects otherwise.
Hat tip to the Student Press Law Center.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016