I Had No Idea Opposing The Tea Party Meant Celebrating Ignorance About Free Speech

Last week two high-school students in Maple Valley, Washington were suspended for wearing what is often referred to as the Confederate flag. Please do not take this as an invitation to drone on about the differences amongst various Confederate flags and battle-flags and so forth. Apparently they decided to wear the flags in response to a fellow student wearing a gay pride flag. A school district spokesperson defended the suspension, saying that wearing the flag is "disruptive." The Confederate flag, that is.

When I see a gay pride flag, I think about the arc of the moral universe bending towards justice. When I see a Confederate flag — any of them — I think about the Cornerstone Speech or the ratification of the Confederate constitution or the Confederate constitution itself or the statements of the grounds of secession by states like, say, Texas, all of which stand for the proposition that, at a minimum, the lead talking-point of the Confederacy was the inherent inferiority of certain human beings. It's popular in some circles to suggest that the Confederates who said those things were exaggerating or misstating the case, or otherwise to retcon the Confederacy. In a world where Ben Affleck can be Batman why can't the Confederacy be founded on a trade policy or something? Knock yourself out, I guess.

Do we want schools to be deciding what controversial symbols are acceptable, and what controversial symbols aren't? Some of us do, apparently. Over at the site "Americans Against the Tea Party," one Richard Rowe celebrates the suspensions and the school's power to choose amongst messages based on their content. Despite the location of the post, it has nothing to do with the Tea Party. Nevertheless I came in with an elitist coastal disdain for the Tea Party (for instance, thinking that it too easily adopts cheap and moronic anti-Obama tropes that undercut its small-government message, and that in an unprincipled fashion in fails to apply its small-government message to law enforcement and military and the surveillance state along with welfare and health care), and left vaguely and irrationally sympathetic to the Tea Party out of disgust for the post.

Ima go buy this dude a pumpkin spice latte or something.

Ima go buy this dude a pumpkin spice latte or something.

Rowe begins with an odd and only partially incoherent discussion of symbols, concluding that symbols can only mean what other people perceive them to mean and that the Confederate flag could not have symbolized Southern pride because the students were not in the South: "But it only represents that (when it does) IN THE SOUTH. Around other people who agree that that is its value as a symbol."

Moving on to his defense of content-based censorship, Rowe notes that the ACLU recently convinced a school district elsewhere to allow a student to wear an anti-gay shirt, and that the ACLU has objected to the suspension in Washington. Rowe undertakes to explain why the ACLU is wrong on the law. Rowe believes he is qualified to do so:

He has several projects in the works right now, including a series of books on driving, fuel economy and the future of the automobile, one on applying the principles of thermodynamics to global economics, a Taoist perspective on applying physics and mathematics to sprituality and religion, and another on the role of the Industrial Revolution in ending slavery.

Well then! Let's see how that works out for him.

Rowe offers what he apparently sees as a devastating critique of the proposition that high school students might have free speech rights to wear shirts others find offensive:

Ah, yes. The First Amendment. The amendment that protects free speech. What are the first five words of that amendment again?

“Congress shall make no law…”

STOP!!

What were the first and last words again? “Congress” and “law.” As a kid who wore an ankle-length, black trench-coat to high-school before, during and after Columbine, I’m pretty well-versed in this one.

A school board isn’t “congress,” and a venue-specific “policy” isn’t a “law.” Remember back in the day, when kids had to wear school uniforms? They didn’t have any say in the matter, and it wasn’t a violation of free speech. Because it was school policy, plain and simple. If you wanted your kid to go to that school, you obeyed school policy and sent them to school in a uniform. The same holds true today for gym class; kids regularly have to wear a certain color shirt and pants/shorts to gym class.

Anyone who has ever discussed free speech on the internet has encountered this argument. It's just that you expect it from twelve-year-olds and recent immigrants from Uzbekistan. Almost everyone else realizes that the First Amendment protects our right to speak freely not just from Congress, but from the states and their political subdivisions. This is not controversial. It's been the law since 1925. That's 88 years. Under the Incorporation Doctrine, American courts have recognized that the Fourteenth Amendment — which forbids states to "deprive any person of life, liberty, or property, without due process of law" — binds states to most of the Bill of Rights, specifically including the Rights in the First Amendment.1 Therefore the Supreme Court has repeatedly recognized that, while schools have significant freedom to suppress speech to maintain discipline, students still have First Amendment rights. In 1969 in Tinker v. Des Moins Independent Community School District, the Supreme Court found that students had the right to wear black armbands to protest the Vietnam War, despite the fact that the right-thinking people who ran the schools thought that was offensive and disruptive. The Supreme Court did not support Mr. Rowe's position that the First Amendment does not apply to schools or that policies are not "laws":

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

The Supreme Court also noted that there was no evidence that the armbands had caused actual disruption, and bluntly rejected the school's argument that the fear of potential disruption sufficed to justify the censorship:

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom—this kind of openness—that is 509*509 the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained.

Since Tinker the Supreme Court has become more deferential to school regulation of speech. But even the most deferential cases do not support Rowe's oddly ignorant parsing of the First Amendment. Quoth the Supreme Court in 2007, upholding discipline for a student who held a "Bong Hits 4 Jesus" sign:

Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969).

So. Are Tinker and the incorporation doctrine so obscure that Rowe could not be expected to know of them? Apparently not. Rowe goes on to argue:

The reality is that kids go to school to LEARN. School isn’t a place for distracting political statements…it’s a place for LEARNING. (Not that supposed Confederates would appreciate THAT particular metric of judgement.) That was the ruling laid out by the Tinker v. Des Moines judgement of 1969, which said this:

“…Although the Tinker decision recognized that students have free speech rights on campus, the court also held that your free-speech rights can be limited when the speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” This rule is referred to as Tinker’s “material disruption” standard, or the Tinker test. For example, a school can “prohibit the use of vulgar and offensive terms in public discourse” while you are on campus.”

So, basically, the school only has to show that the thing in question “materially disrupts classwork,” and it’s gone. The school administration makes that decision, and may have to prove it later. But on the spot, the administration makes that call. Considering the fact that it was supported by the local community and parents, this was evidently the right one.

That's right. Rowe begins with a stupid First Amendment argument directly contradicted by Tinker, then turns around to quote Tinker for the one part he likes: that schools have some freedom to prevent disruption. He also manages to ignore the part of Tinker holding that a school may act based on actual disruption but not speculation about possible disruption.

Rowe ends by celebrating the heckler's veto, suggesting that schools should censor speech that offends some people:

Of course, by that standard, maybe the Gay Pride flag shouldn’t have been permitted either. If it distracted anyone from classwork or studies, then it should be gone, too. Great…school is for learning. But if nobody cared, then nobody cared. But did people care about a couple of yahoos carrying around a sign of hate and violence in “protest” (read: intimidation) of a person who’s part of a group historically victimized by bearers of that same flag?

Hell, yes, they did.

And that’s the end of this Flag Game.

And yet the stories about the Maple Valley incident don't support the assertion that the Confederate flags disrupted school; they support the conclusion that school administrators say the flag is inherently disruptive because of the message they conclude it stands for. I tend to conclude it stands for that same message, but that doesn't mean that I think the power to censor it without proof of actual disruption should be delegated to me or to school officials.

Rowe's column celebrates deference to school authorities. That celebration occurs in a particular context. The context is a nation in which school authorities strip-search a 13-year-old girl looking for ibuprofin. The context is a nation in which school officials suspend an autistic kid for drawing a cartoon bomb. The context is a nation in which school officials suspend an eight-year-old boy for making a gun with his finger while playing. The context is a nation in which school officials suspend seven-year-olds for biting their breakfast pastry into something resembling a gun. The context is a nation in which school officials suspend kids for wearing t-shirts supporting gay rights or supporting gay marriage or supporting the gay-straight alliance or supporting the NRA or criticizing the President about a war or protesting a school policy or opposing abortion or even for wearing shirts with the American flag on Cinco de Mayo.

Rowe asserts that school officials should make content-based value judgments about students' speech because some speech, like the Confederate flag, is an attack on traditionally despised groups. He frames the dispute as one between the pro-gay message the school permitted and the apparently anti-gay message intended by the suspended students. Rowe's premise is one that is as familiar as it is moronic: we can trust the government to use exceptions to free speech in a way that will benefit traditionally despised and powerless groups. A look at the links in my paragraph above, or a few minutes' research into modern student speech disputes, puts the lie to this: for every student suspended for a Confederate flag, there is a student suspended for a pro-gay message. This is not a mystery. This is the natural and probable and predictable consequence of conferring power to regulate speech upon the state. Exceptions to rights will naturally fall more heavily upon powerless and traditionally despised groups. Only fools believe otherwise.

I think the guys who reacted to the gay pride display with a Confederate flag display are assholes, and are celebrating values that make America worse. But ultimately Rowe's expression does more harm to the country than they do. They're celebrating bigotry, but they may grow out of it. Rowe's promoting ignorance about fundamental rights, censorship, and subservience to state actors. He probably won't.

  1. If Rowe, rather than being ignorant of the incorporation doctrine, stands in opposition to it, then he's a political bedfellow of — wait for it — wait for it — Ron Paul. The lulz, I haz them.  

Last 5 posts by Ken White

Comments

  1. Anglave says

    This morning, you win the Internet.

    I apologize that this post doesn't add any substance, but I was entertained and educated and I wanted to let you know.

  2. BullsLawDan says

    Mr. Rowe, I've met Mary Beth Tinker. Mary Beth Tinker is a friend of mine. Ok, she's not, she was actually just a speaker at a local college. But you, Sir, are no Mary Beth Tinker.

  3. John says

    As someone relatively ignorant of First Amendment law in schools: does it also extend to direct personal attacks? For example, would wearing a T-shirt reading "Mandy Scoggins is a dipshit" constitute protected speech in a school? If it doesn't cover attacks on a single person, then why does it extend to statements and symbols which attack whole groups of people, like for example a Confederate flag neckerchief or a T-shirt insulting the Tea Party?

    This is a genuine question – I don't know how current legal opinion draws the line, and I'm curious.

  4. Gambit says

    An interesting subplot to views such as Rowe's is the complete and utter galactic arrogance it takes to say "my opinions are so correct, so virtuous and so obviously valid that they will stand the test of time I'll invoke the power of the state to suppress opposing views", not realizing how easy it is to envision a scenario in 20 years where societal movement may make those views anathema…subject to the same suppression.

    Who's to say in the next generation or two it won't be the case that society punishes viewpoints that don't extol the Confederacy (and to establish bona fides, I think anyone sympathetic to the Confederacy cannot call themselves patriots. The Civil War wasn't a war between equal sides with equal valor. It was a war of rebellion fought by traitors who killed American soldiers. It's an outrage military installations today are named after traitors).

  5. says

    > Please do not take this as an invitation to drone on about the differences amongst various Confederate flags and battle-flags and so forth.

    If only I could find a high quality rip of Dale in King of the Hill talking about the gold fringed admiralty flag.

  6. Josh C says

    I can't argue with your explanation of what the law is. I like that the law comes down so thoroughly on the side of free speech. But I have a hard time reconciling laws where the plain meaning of the words is wildly different from their interpretation with the principles of a free society. That's doubly true when the exact same words lead to different interpretations with respect to religion, assembly, and the press.

    While much of Rowe's post may deserve mockery, what's so bad about his proposition that laws mean what they say they mean?

  7. Hoare says

    @gambit

    It was a war of rebellion fought by traitors who killed American soldiers. It's an outrage military installations today are named after traitors

    substitute British for American and it sounds like the same type of people living on the east coast of North America ~100 years earlier

  8. Bob McBobertson says

    "a full-time freelance writer who has written over 3 million words in the last four years alone — mostly on automotive and technical subjects."

    -Oh, well in that case, please continue kind sir.

  9. Trebuchet says

    Interesting that it was in Maple Valley. 40 or so years ago, Maple Valley was widely known as a hippie haven, a place for long-haired folks to get a small patch of land and grow their own. It's long since gentrified, of course, but you've gotta wonder if the children of those hippies aren't now running the schools.

  10. Trebuchet says

    And completely off topic – the preview box and edit ability are great. Can you teach Ed at Freethought Blogs how to do that?

  11. Dave says

    While much of Rowe's post may deserve mockery, what's so bad about his proposition that laws mean what they say they mean?

    If you put the Constitution and its Amendments into a single document, I only have to hit page down once, maybe twice to get from the part of the 1st that Rowe quoted to Section 1 of the 14th, where the incorporation doctrine comes from. In any complex matter, (and even many simple ones) words need to be judged in relation to their context, and the Law is no exception.

  12. Dave says

    substitute British for American and it sounds like the same type of people living on the east coast of North America ~100 years earlier

    Perhaps, but how many British military installations are named after American figures from the War of Independence?

  13. says

    While much of Rowe's post may deserve mockery, what's so bad about his proposition that laws mean what they say they mean?

    Are you suggesting that Rowe is making the Ron Paul anti-incorporation argument — that the First Amendment only restricts the federal government?

    Even if he is — and I think that's highly dubious, for numerous reasons — what's wrong with it is (1) he doesn't make it clear that's what he's doing, and (2) he raises it in a discussion of what the students' rights are under the current law without flagging that he's making an argument about what the law should be rather than what it is, thus promoting ignorance and confusion about what the law is.

    But I don't believe for a second that he's a plain language or anti-incorporation advocate, which would require — among other things — rejecting every privacy (and abortion, and gay-rights) decision of the last half-century.

  14. Ted H. says

    @John

    SCOTUS uses the rationale that, in schools, the students' freedom to advocate unpopular and controversial views should be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. This rationale comes from a case where a student used sexually explicit language referring to a student in a campaign speech for student office. Therefore, in the present article, it is socially acceptable, arguably, to wear a confederate flag to protest gay pride flags, while, in your example, obscene language directed specifically at a particular student would not be protected.

  15. stillnotking says

    [Ken] left vaguely and irrationally sympathetic to the Tea Party out of disgust for the post.

    This is what liberals have never understood about populist movements. My theory is that liberals are accustomed to using ridicule as a weapon, because it works against the powerful and liberals are rarely in power. What they don't understand is that ridiculing a populist insurgency only makes it stronger. Picking on the little guy, rustic, misguided, and illiterate as he may be, sends a very different message than tweaking the giant's nose.

    Besides, to ridicule something effectively you have to understand it, and liberals understand the Tea Party about as well as they understand the NASCAR ranking system.

  16. says

    @Dave

    If you put the Constitution and its Amendments into a single document, I only have to hit page down once, maybe twice to get from the part of the 1st that Rowe quoted to Section 1 of the 14th, where the incorporation doctrine comes from.

    To be fair, the incorporation doctrine is a doctrine; it's not explicitly spelled out.

    I'm not taking either side here, merely noting that the reality of an actual functioning system of government is more complex than some conservatives like to think when they say things like "read the Constitution!".

    One can imagine an infinite number of functioning yet distinct governments in parallel universes, all of which claim that they are faithfully following the same Constitution.

  17. CJColucci says

    We will eventually see school uniforms everywhere, just to avoid this nonsense and save legal fees.

  18. JTM says

    This one's a tough call for schools, because while they have to respect students' First Amendment rights, they also have an obligation to protect the students in their care. There's a lot of pressure on schools right now to stop bullying and harassment, especially in light of the high-profile youth suicides that have occurred during the last few years.

    Given that, you'll find that schools are more likely to allow affirming or positive statements (like a rainbow flag), and more likely to disallow expressions that denigrate certain groups of students (like the Confederate flag). With regard to the flag, I think there's a significant distinction from the black armbands in Tinker – the armbands weren't symbols that other groups of students were inferior, less than human, should be put to death, etc.

    Also keep in mind that in a school setting, disruption doesn't necessarily mean a lunchtime brawl – if a student is wearing a t-shirt with a quote from Leviticus, saying that gays are abominations who should be killed, the gay student sitting behind him may well have difficulty paying attention to the math lesson. Children don't have the emotional maturity that adults are expected to have, so just ignoring hateful speech isn't always feasible. And since students aren't free to just get up and leave class, removing themselves from the offensive speech, students who are targeted by hateful speech don't have the same kind of remedies they'd be able to exercise in an adult environment to protect themselves.

    Think about a workplace environment – if an employer allowed its employees to display confederate flags at work, it would probably be subject to a discrimination claim under Title VII.

    Rowe's arguments in favor of banning the Confederate flag aren't persuasive, but that doesn't mean that schools don't have legitimate arguments to support those restrictions. There's probably not a universal answer, either – you'd want to look at the restrictions on a case by case basis, at the school-site level (even a district-wide approach is probably too broad).

  19. says

    One can imagine an infinite number of functioning yet distinct governments in parallel universes, all of which claim that they are faithfully following the same Constitution.

    For those weak on imagination, look at how many different religions, and their sects, sub-sects, etc, all claim to follow the same holy book(s). Christianity, Islam, Judaism, Hinduism, Buddhism, and pretty much any religion larger than one prophet+one acolyte have multiple schisms. (And as Kipling pointed out in "The Disciple", the schism starts as soon as the prophet dies and his acolyte takes over…)

    Ken's main point, I think, is that if someone fails to distinguish the law as it is, and the law as they may wish it to be, they come across as ignorant (if one assumes they don't know the difference) or deceptive (if one assumes they do know the difference, but wish to muddy the issues). For the umpteeth time, we see the value of the philosophical concept known as Megatron's Query: "Are you lying, or just stupid?"

  20. Max says

    No platform for Fascists was a thing I used to believe in in my youth. I'm astonished to discover I still believe it. In fact, I think it was a linked Popehat/Scalzi series of threads that convinced me by experiment and example when I was beginning to doubt.

    Still, this is a legal arguement being made here, and while I'm technically still a Lawyer apparently, a fact that horrifies even me, it is UK law and from 20 years ago and I've forgotten even the stuff I learned then. Seems eminently sensible though, this US position.

    I hope these objectionable young people get to mark themselves as mild racists worthy of contempt and derision from all right thinking peers as soon as possible. Not Fascists, just vile enough not to be invited to the best parties.

  21. Dan Weber says

    IANAL but it's not a given that the Incorporation Doctrine applies every single restriction on the Federal government to the states. Whether the Second was included was something only recently (and incompletely) decided, for example.

  22. says

    @Dan Weber

    IANAL but it's not a given that the Incorporation Doctrine applies every single restriction on the Federal government to the states. Whether the Second was included was something only recently (and incompletely) decided, for example.

    Indeed.

  23. says

    @Max

    I hope these objectionable young people get to mark themselves as mild racists worthy of contempt and derision from all right thinking peers as soon as possible. Not Fascists, just vile enough not to be invited to the best parties.

    Jesus.

    I don't want to associate with "mild racists", but if the alternative is "the best parties" made up of "right thinking people", maybe I'll reconsider that – the racists might be less exclusionary and self satisfied than your group.

  24. Ted H. says

    No platform for Fascists was a thing I used to believe in in my youth. I'm astonished to discover I still believe it.

    Would Europe have fallen to fascism if its governments espoused liberal free speech policies? Wasn't speaking out against governments i.e. fascist ones highly punishable back then?

  25. Luke says

    @Ken –

    Rowe begins with a stupid First Amendment argument directly contradicted by Tinker, then turns around to quote Tinker for the one part he likes

    I don't believe Rowe actually read any part of Tinker, the quoted section he gives about it is from an EFF blog: https://www.eff.org/issues/bloggers/legal/students

    Hopefully when he tries to apply thermodynamics to global economics he doesn't rely on ultra abridged cliffs notes.

  26. Al says

    I'm going to go out on a limb here and take up what I'm sure is going to be a very controversial and unpopular stance.

    I think that Ben Affleck will do just fine as Batman.

    Yes, he'll need a good script and a good director (a tall order to be sure) but I think that if he's got that then he'll be capable of pulling it off. Don't forget, the last time this happened the Internet got it very, very, very wrong.

  27. David W says

    @JTM

    since students aren't free to just get up and leave class, removing themselves from the offensive speech

    Maybe this is the lever we should use, rather than relying on school administrators to ban exactly and only that speech that should be banned?

    School vouchers would certainly allow students to refuse to associate with those who speak offensively – at least if the speech is hurtful enough to accept the tradeoffs in changing school. Even something less to Clark's liking, such as school choice within districts, including charter schools, might have a significant effect.

  28. mike says

    "Rowe asserts that school officials should make content-based value judgments about students' speech because some speech, like the Confederate flag, is an attack on traditionally despised groups."

    It's probably more accurate to say that he wants school officials to suppress statements by currently despised groups (people who wear Confederate flags). I mean, doesn't every oppressive bigot claim that his bigotry is justified by some odious quality of the people he wants to destroy?

  29. JTM says

    @David W

    There are a lot of policy issues with both charter schools and school choice within districts, and I think it probably goes too far afield from this thread's topic to really get into them. Because of all the other complications with charter schools and school choice, though, they may not be an option in all of the cases where discriminatory student speech is an issue. I think it's probably more effective to look at solutions within an individual school, rather than moving the targets of discriminatory speech to a different school.

    When I said that students aren't free to leave, I was thinking more about the fact that students can't immediately leave the vicinity of a person expressing discriminatory speech, like they could in most public settings. If the discriminatory speech is having enough of an effect on a student that the student feels a need to transfer schools – with all of the disruption in the student's life and education that comes with a school transfer – I'd think that would give the school grounds to reasonably argue that the discriminatory speech could be prohibited as disruptive and invasive of the student's rights.

  30. HamOnRye says

    @ Max

    I hope these objectionable young people get to mark themselves as mild racists worthy of contempt and derision from all right thinking peers as soon as possible. Not Fascists, just vile enough not to be invited to the best parties.

    Speaking of Fascist, I hope this was a poorly executed attempt at satire.

  31. Xenocles says

    You pick good, challenging cases, Ken. I know this because I'm really something of a free speech absolutist and yet I've been finding myself at least sympathizing with the nominally speech-limiting side. I think that's because these cases seem to lie on the frontier between speech and conduct. I lean a little toward seeing this case as follows:

    The Confederate flag means a lot of things to a lot of people. There's no reason to assume the bearer of such a flag has a particular meaning in a generic situation. It could mean anything from "slavery was awesome" to "I am from the South" to "I support regional home-rule." However, I'm having trouble seeing what it could mean in this situation other than a direct jab at gay people, including any gay students at the school. (I welcome any suggestions as to what else it might have meant in this context; my lack of imagination is not proof of anything.) I don't know that the Confederacy had any special animus toward gay people (other than the general antipathy common to its time), but what else could be meant by wearing it as "a response to" a gay pride message?

    An institution is within its rights to regulate conduct within the institution in order to optimize its performance with respect to the mission. I don't think there would be much uproar if this student were disciplined for singling out gay kids with audible insults. Even if the insults took place in the hallway, you could make the case that the targets' ability to focus in class and learn (the mission of the school) is disrupted by the hostile environment created by the insulter. I have a hard time imagining a successful complaint that a teacher told a kid to stop harassing another student, but IANAL.

    To put it in starker relief, a shirt that said "I hate faggots" would be pretty clearly disruptive. The intent is clearly to harass any gay person who reads it, along with potentially any straight person sympathetic to gay people, and this harassment interferes with the conduct of school activities. Normally, a Confederate flag would not carry such a clear message, but using it as a response in this case pushes it a little closer to the line for me.

    I don't know what my decision would be in that place but I am more hesitant to second-guess the administration in this case. I suppose the inevitable effect of these conduct-based limitations is to make schools and similar institutions message-free zones, in this case with uniforms or dress codes requiring solid colors or generic patterns (though even that would eventually be exploited as certain cliques adopted specific colors or patterns that sent clear messages to people in the know, which students would be).

  32. jackn says

    @stillnotking

    This is what liberals have never understood about populist movements. My theory is that liberals are accustomed to using ridicule as a weapon, because it works against the powerful and liberals are rarely in power. What they don't understand is that ridiculing a populist insurgency only makes it stronger. Picking on the little guy, rustic, misguided, and illiterate as he may be, sends a very different message than tweaking the giant's nose.

    Besides, to ridicule something effectively you have to understand it, and liberals understand the Tea Party about as well as they understand the NASCAR ranking system.

    Teaparty = populist
    I guess that does fit with the bigger organization's MO to use fallacious arguments to fool ignorant sheep into believing a ficticious message.

    Perhaps if the giant didn't fool the misguided and illiterate, they wouldn't make themselves such easy targets.

  33. mike says

    Xenocles, what you seem to be saying is that wrong-thinking people have no rights that the right-thinking man is bound to respect. A popular sentiment among right-thinking people, I'm sure, in any era.

  34. William says

    "However, I'm having trouble seeing what it could mean in this situation other than a direct jab at gay people, including any gay students at the school. (I welcome any suggestions as to what else it might have meant in this context; my lack of imagination is not proof of anything.)"

    It could mean "you let the guy wear the gay pride shirt even though I object to it, so that should mean that I'm free to wear a shirt that I'm certain almost everybody will object to. If that proves not to be the case, that means you're a bunch of hypocrites."

    For what it's worth, when I read Ken's post that was my initial interpretation of their point. Heck, it probably still is.

  35. Justin Hemmings says

    So, while I'm not sure I agree with it, it seems like Bethel v. Fraser has to come into play here as well (Fraser holds that you don't have to show an actual material and substantial disruption when the speech censored is inherently vulgar or lewd). While Rowe certainly doesn't do a good job of making the argument, the response is usually that the Confederate flag's history is inherently offensive and vulgar, therefore no need for it to actually cause the disruption before you can restrict wearing it.

    So, y'know, worth considering.

  36. JTM says

    Relevant to the conversation: http://www.sacbee.com/2013/10/17/5828291/court-considers-calif-schools.html

    The Ninth Circuit is considering a case in which school administrators prohibited students from wearing American flag t-shirts on Cinco de Mayo, at a school where there had been racial tensions between white and Latino students.

    The district court ruled in favor of the school administrators: http://ia700707.us.archive.org/5/items/gov.uscourts.cand.228924/gov.uscourts.cand.228924.67.0.pdf

  37. Ted H. says

    @jackn

    Perhaps if the giant didn't fool the misguided and illiterate, they wouldn't make themselves such easy targets.

    To my mind, populism is defined as a movement by a populace against its elites. It seems implied from your criticism — the teaparty as populism — that because they have rich backers that they necessarily can't be against the elite because they're entangled with the elite i.e. the rich backers of the movement. However, I think the teaparty sees the federal government, and all of its officials, as the elite, and its wealthy backers as merely part of the populace. The wealthy backers of the teaparty, along with its less wealthy majority, see themselves as rising up against the governmental elite who seek to control the populace through far reaching federal regulations.

  38. mike says

    "the Confederate flag's history is inherently offensive and vulgar, therefore no need for it to actually cause the disruption before you can restrict wearing it"

    What does "inherently" mean again?

  39. mike says

    No, I read it, and I saw a person explaining why it's okay to censor BAD speech while allowing GOOD speech, because BAD speech is BAD and GOOD speech is GOOD. It's a pet peeve of mine.

  40. mike says

    No, I read it, and I saw a person explaining why it's okay to censor BAD speech while allowing GOOD speech, because BAD speech is BAD and GOOD speech is GOOD. It's a pet peeve of mine.

  41. Dion starfire says

    The full account of the original event over at KOMO news adds some interesting details.

    These aren't just flag logo's printed on a shirt, these are actual, full size flags (both the gay pride and confederate ones) worn like some superhero style as a cape.

    Given that little detail, I think the gay pride one would be just as disruptive. So I'm gonna have to agree with Rowe's principle, but for different reasons. If the confederate flag is disruptive, the gay flag should be, too. The school messed up when they didn't discipline the gay pride kid (probably out of a desire to not appear bigoted against gay people).

    If you look at this less like hate speech and more like the standard "if s/he can do it, I can too" attitude kids (even the ones in HS) have, it takes on a completely different perspective.

  42. mike says

    I mean, just to make it clear, there was a time and there are still many places today where I could make the exact same argument with the positions reversed. If your response to that is "b-but… THAT'S DIFFERENT" then your self-centered moral myopia is showing.

  43. stillnotking says

    Many people, especially on the left, seem to believe the Koch brothers "created" the Tea Party. They believe this because they are historically illiterate, and because they don't have enough common sense to understand that even billionaires cannot create political movements out of thin air.

    If you want to begin to understand the Tea Party, read the following Wikipedia articles in order: William Jennings Bryan, Father Coughlin, George Wallace. Then read this article.

    The words change, but the song remains the same.

  44. JTM says

    @Ted H.

    So it was. I love Ken's commentary, but I must confess I'm guilty of skimming over some of the link-heavy paragraphs. I do think this case is a little out of place in a commentary about abuses of school administrator authority, since the court determined that given the facts of this particular case, "the school administrators reasonably forecast that Plaintiffs' clothing could cause a substantial disruption with school activities."

    Edit: When I started this post, it was in response to a comment that Ken had linked in his post to a news article on Dariano v. Morgan Hill. I'm not talking to myself, really. I hope.

  45. says

    The problem with banning symbols is that they're mutable and can mean vastly different things to different people.

    The original meaning of the symbol may be irrelevant to the person using it today.

    The best example may be the swastika. For centuries it didn't mean Nazi or even evil.

    The Confederate flag is something that's taken on a non-evil meaning to a lot of people while still retaining its racist meaning to a bunch of others. It's controversial. No doubt about it.

    If you're going ban one thing for being offensive, you must ban EVERYTHING that's offensive. No matter what and no matter whom is offended. Remember that mutable thing? You're going to end up banning everything.

    I think I'd rather my kids learned that there are things that will offend them and to deal with being offended rather than remove all offense from view.

  46. says

    @Xenocles: Would wearing a Darwin Fish be "harassment" or "disruptive" under your test? It is a deliberate mockery of a faith's sacred symbol.

    How about a shirt showing a Star of David, an equals sign, and a swastika? This is a common sentiment of those opposed to the Israeli occupation of Palestine.

    Being exposed to ideas that run counter to your own is not harassment. Being made aware there exist people who dislike you, not for anything you did, but for some arbitrary collective they've put you in, may be unsettling, but it's not harassment. That's reality: There's bigots out there. Anyone who is a member of a group which might be targeted — and that's everyone, because, for any group X, there is someone whose self-identity rests on how much they hate group X — had better learn coping skills. The world is becoming less homogenous, and global reach is becoming available to more people. Exposure to speech that targets your race, religion, sexual orientation, dietary choices, etc., is inevitable. Learning to control oneself when one encounters it, and learning how to protest, dissent, and object without resorting to force (either directly, or via the state) is a skill people should be taught early on.

    It's worth noting that, in the Tinker case, the speech at question was considered, at the time, extremely disruptive. Disputes over the Vietnam war often led to violent confrontations.

    Also, a school will never be a "message free zone". The school is going to be constantly sending messages, explicitly and implicitly, to students. It can be argued that a student shouting down a teacher is being disruptive and preventing education, but wearing a shirt or a symbol that says, "I disagree with the message this school is teaching" (or that society is teaching, or whatever) does not silence anyone else's speech or make it impossible to teach.

    Speech that is "likely to cause disruption" is speech that is unpopular or dissident. In other words, the speech most in need of protection.

    The state, and its agents, cannot allow Group A to express an idea Group B — or even a single person — finds offensive, but not also permit the reverse. It cannot allow a pro-gay shirt and not an anti-gay one.[1] Your suggestion of a "message free zone" is unenforceable and unconstitutional, because even in some hypothetical situation where no student can communicate a message via clothing or signals, the school is still sending messages and prohibiting any dissent from them. ('round these parts, we call that totalitarianism.) The permissible social/personal response to offensive speech is much broader than the permissible governmental response.

    [1]The idea that the Confederate flag is somehow "anti-gay" is a little odd. I assume the logic, as it were, goes like this: "Them libruls don't lahk this here flag. Them libruls do lahk gays. Therefore, showin' this flag means Ah don't lahk gays. A-yup."

  47. Ted H. says

    @JTM

    I edited out my comment to you because upon second thought, it is valuable to the conversation and deserved reminding. It's an interesting similarly factual situation to the one at issue in this post e.g. what sorts of speech that might cause disruptions are socially acceptable, and what aren't.

  48. Edward says

    I hope that principal never has to witness a Lynard Skynard concert. Disruption on display in every corner.

  49. Luke says

    @JTM –

    I wonder what would have happened if those kids had worn french flag t-shirts instead of US ones. It would have been much more historically antagonistic but sadly I doubt anyone would have noticed.

  50. mud man says

    I'm having trouble seeing what it could mean in this situation other than a direct jab at gay people, including any gay students at the school.

    They SAY they were expressing "Southern pride". Admitting that people sometimes lie about such things (and also admitting the possibility of serious unintended consequences), it still seems to me that on first face my speech should be taken as reflecting my psyche.

    High schoolers are heavily into social formation. They get their group; we get our group. Our group is clearly different than your group, but hopefully not necessarily antagonistic to it … multiculturalism and all that.

    From the very limited facts on the ground available here, it would seem that the demonstrated disruption arose from the gay pride shirt.

  51. Jake says

    that is 509*509 the basis of our national strength

    Did the page number accidentally get included in this quote?

  52. Caleb says

    Please do not take this as an invitation to drone on about the differences amongst various Confederate flags and battle-flags and so forth.

    Of course you anticipated the flag-nerds in your readership. I'll contain myself.

    :(

  53. Xenocles says

    @Lizard-

    I consider this to be a possible reasonable time/place/manner restriction. My contention is that there is a point at which the expression of your message can become harassment that impedes the ability of others to function as required. I dislike doctrines that require subjective interpretation of the situation because they are easily abused, but in the abstract my thought is that when a student goes out of his way to gratuitously insult a student or group of students that constitutes inappropriate behavior for school. I would want to think long and hard about how to structure such a policy, but I think that's a reasonable working outline of it. This situation seems to me that could be reasonably interpreted as an attempt to directly insult a fellow student.

    I would much prefer a separation of state and education, which would both avoid these issues and better appeal to my sensibilities.

    (As I said, I agree that the choice of the flag is an odd one. If he had just worn it to school I would give him the benefit of the doubt. But when he himself called it a response to the other student's message, what else could the intention be? His own explanation takes a fair amount of the ambiguity out of it.)

  54. Grifter says

    I'm aware that the school is not at all using the thing I'm about to mention as their argument, but what would be the response if the school thought it was inherently traitorous to display that flag? I know some folks have taken it as "south pride", but the flag represents what it represented, yes? And, regardless of whether you think the treason was justified, wasn't the existence of the Confederacy treasonous?

    Personally, I'd have had less problems with a symbol or slogan that indicated a hatred of gays (or south pride, whatever it was they were trying to convey), than I do for a "country" that fought a war with us, and whose very existence was illegal under the laws.

    But I'm certainly no lawyer, so I'm curious, had they used THAT determination (inherently treasonous or supporting treason, so you can wear a God Hates Fags shirt but not a confederate one) would it have been a valid restriction?

  55. pillsy says

    @Grifter:

    There's definitely history of speech restrictions being imposed and upheld on grounds of disloyalty or sedition (though I don't know to what extent that history remains precedent, since I'm no sort of lawyer), but it's certainly not the sort of history I'd want to appeal to when discussing this kind of case.

  56. ChicagoTom says

    So this Rowe fellow's beliefs basically line up with Clarence Thomas' beliefs about students and their constitutional rights…that they don't have any.

    Personally, I don't think the administration should be banning things like gay pride shirts/flags or Confederate flags/shirts or anything. Unless it's obscene or is being used to actually harass (not merely make someone feel bad that someone holds certain beliefs that dont line up with theirs)

    More than anything I am shocked that we are still fighting these fights in 2013. Haven't enough schools been slapped down for this kind of censorship that they would have learned by now?

  57. Xenocles says

    @mud man-

    That is not an unreasonable explanation, and it weakens my argument in this specific case considerably. I maintain the principle, though.

  58. JTM says

    @Grifter
    Article III, Section 3 of the Constitution defines treason very narrowly. Expressing agreement with people who commit treason, or the cause they're fighting for, isn't itself treasonous.

    Even looking at sedition laws, which are broader than treason, time matters. Given that the Confederacy is long gone, and no current threat to the United States, showing agreement with the Confederacy by displaying the flag wouldn't be grounds for government sanction or restriction.

    Caveat: I do not practice the law of treason, or sedition law, or criminal law, or anything like that, so if you do something silly based on this post and find yourself facing extraordinary rendition, don't blame me.

    Similarly, if you're a school administrator, don't go running around disciplining students for displaying the American flag just because I linked to a case where the court said it was okay to make kids turn their shirts inside out. Don't rely on the internet for answers to your legal problems. Find a lawyer with malpractice insurance and pay their hourly fees. This is for entertainment purposes only (mine, not yours).

  59. ChicagoTom says

    To be fair, the incorporation doctrine is a doctrine; it's not explicitly spelled out.

    One could argue that it's only a "doctrine" because the courts have basically refused to accept the plain meaning of the words of section 1 of the 14th Amendment.

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    The courts have bent over backwards to change the meaning of the bolded statement so as not to have to interpret it as saying "States cant violate the bill of rights"

  60. A. Nagy says

    @stillnotking

    Interesting article but defining the teaparty movement I'm not so sure. Based off the people I know that support the teaparty, they don't think it's some EVIL PLOT or even GRAND SCHEME most all of the people I know who believe stuff like this voted for Obama or didn't vote because the system is so corrupt. Mof the other parts about it are true, but I feel like yep that's the way it is when your party isn't in power. Remember Bush lied, people died and how the wars were all about oil money.

    It gets at a train of thought but it seems to be missing something kinda like someone looking in from the outside so it's missing full understanding of the mindset if that makes sense.

  61. AP² says

    Jesus.

    I don't want to associate with "mild racists", but if the alternative is "the best parties" made up of "right thinking people", maybe I'll reconsider that – the racists might be less exclusionary and self satisfied than your group.

    While I don't support the total exclusion of some dumb kids for wearing those flags, I think your post reveals a major lack of empathy and understanding of the cancer that Fascism was in Europe, and how many of our families it ruined.

    "Fascism, never again" is more than an empty slogan here.

  62. Steven H. says

    @Dave:

    substitute British for American and it sounds like the same type of people living on the east coast of North America ~100 years earlier

    Perhaps, but how many British military installations are named after American figures from the War of Independence?

    None.

    On the other hand, those Confederate officers that have military installations named after them were graduates of West Point, and had served with distinction in the Federal Army before they decided they owed more loyalty to their State than to the Union.

    Yes, they were traitors. In the same way that George Washington was a traitor. Fortunately, the Federal government after the Civil War decided that treating the South harshly would be a bad idea, and overcame the urge….

  63. Curmudgeonly Ex-Clerk says

    Grifter:

    Treason is defined in the Constitution: "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." I doubt wearing the flag of a long-ago defeated faction, none of whom ultimately were tried or convicted of treason themselves, satisfies this definition. It seems like a stretch to refer to these flag-wearers as treasonous. If we take your argument to its logical conclusion, why couldn't the government imprison anyone who expressed support (or perhaps even sympathy) for the bygone Confederacy? If you are using treasonous in some more colloquial sense, I guess I don't understand what work it is doing in your argument.

  64. AP² says

    Would Europe have fallen to fascism if its governments espoused liberal free speech policies? Wasn't speaking out against governments i.e. fascist ones highly punishable back then?

    As far as I know speaking against fascism or fascist government in non-fascist countries wasn't generally punishable (at least, legally. It's not like the fascist movement was extremely pacific until it controlled the States).

  65. Marconi Darwin says

    @Ken White

    Are you suggesting that Rowe is making the Ron Paul anti-incorporation argument — that the First Amendment only restricts the federal government?

    Not Ron Paul. Justice Clarence Thomas, at least on the establishment clause. Justice Thomas has also opined that Tinker be overruled

  66. Grifter says

    @Curmudgeonly Ex-Clerk:

    The direct advocation of treason is, presumably, legally allowed to be prohibited. Granted, that's not what these kids are doing.

    I'm not in favor of jailing these kids. I'm not even sure I'm in favor of prohibiting them from wearing their dumb flag. I'm just questioning whether that would be a legitimate limitation of their right to wear it based on the grounds that they are in school expressing support of the flag of an illegitimate and (yes, yes, arguably) treasonous country.

    More broadly: Is disruption the only allowed reason for prohibition? If so, doesn't that encourage the offended to purposefully disrupt, in order to give grounds for prohibition?

  67. Maurice de Sully says

    Tom, if the bolded portion of the 14th meant was the equivalent of the text you replace it with, why didn't they simply use the language you are suggesting? Why not a straightforward reference to the state application of whichever amendments you feel are incorporated?

    Do you suppose it had to do with somebody trying to pad their billables or do you suppose it was because the amendment you are suggesting would have a passed as readily as a repeal of the 13th Amendment would pass today?

  68. AlphaCentauri says

    The kids have a right to express themselves. However, their classmates will be taking pictures and posting them on Facebook and Reddit. If I were an administrator, I would be concerned about immature kids pulling a stunt that will haunt them for years when they apply for jobs and those photos are sitting on the internet.

    I'd want to sit them down and speak to them about it. And I would strongly consider making sure their parents are okay with it before letting them walk around school dressed like that.

    But to a 15 year old, that would sure look like an attempt to intimidate them from expressing the right to free speech.

  69. Docrailgun says

    Still not king wrote:
    "This is what liberals have never understood about populist movements. My theory is that liberals are accustomed to using ridicule as a weapon, because it works against the powerful and liberals are rarely in power. What they don't understand is that ridiculing a populist insurgency only makes it stronger. Picking on the little guy, rustic, misguided, and illiterate as he may be, sends a very different message than tweaking the giant's nose."

    I think you misunderstand liberals. The 'little guy, rustic, misguided, and illerate as he may be' is exactly who the liberal cares about. Thus, the labor movement, civil rights movement, etc. The conservative apparatus has somehow convinced people that they are the champion of the average man and the middle class, that 'liberals' are all coastal gay brown people boogeymen who only care about taxing and spending. Keyser Soze has worked on the GOP's image a good thirty years now.

    Back to the topic: should a school allow a group of students to wear clothes that are likely to incite violence? For instance: the school allows a MLK Day celebration and a group of students decide to wear white robes and hoods to class? How about swastikas to a "Diary of Anne Frank" reading? Crips colors and Bloods colors? Hammers and sickles (or these days, something that supposedly represents 'foreign terrorists') to a 4th of July celebration? Is it really so unreasonable for 'the authorities' (that could be a school administration, a city government, etc.) to ask the people involved to not wear something or do something specifically to provoke others? Note that I'm not saying that the people who are looking for the fight shouldn't go ahead and make their protest, but the whole point of authority is to keep the peace and keep things moving along smoothly. So, if the authority is right or wrong from others point of view, isn't the authority doing its job by asking people not to get into a fight? We allow authority to do things that some people would say are wrong (kill people with tanks and planes, kill people as punishment, make sure that companies provide safe workplaces, demand that companies provide pure products, limit pollutants emitted, etc.) and we don't demand that these governments dismantle the US Military because it kills people (sometimes people have to do things that are wrong but necessary – like wage war).

  70. mike says

    If schools want to prevent violent people from being violent, maybe they should focus on the violent people rather than their potential victims.

  71. AlphaCentauri says

    @mike, I think they were working on the theory that wearing a confederate flag would be considered a thinly veiled threat against minority students just as much as it could cause problems by inciting violence by those students against the flag-wearer.

  72. barry says

    Trong Van Din put it well in his speech in "Mr. Lisa Goes to Washington":

    Where else but in America, or possibly Canada, could our family find such opportunity? That's why, whenever I see the Stars and Stripes, I will always be reminded of that wonderful word: flag!

  73. Josh C says

    Are you suggesting that Rowe is making the Ron Paul anti-incorporation argument — that the First Amendment only restricts the federal government?

    (and also @Dave)

    With respect, I think that's beside the point. There are any number of ways that the incorporation doctrine could be applied (e.g: as it currently does; or by requiring that state legislatures also abstain from making laws abridging freedom of speech; or by having no effect; etc.), but none off them are obviously called for in the text.

    As to the criticisms of his presentation, perhaps he doesn't have someone to install footnote plugins for him? (kidding! Only kidding.)

    More likely, he, like most other people, has not had the luxury of arranging a completely consistent worldview. The fact that he hasn't fully considered his position is just well-poisoning though; it doesn't make his actual points any less (or more) correct.

  74. Duvane says

    @ChicagoTom

    This thread has caused some of my longstanding unease about the Incorporation Doctrine to finally coalesce into this thought: Without regard to questions of whether incorporation is valid constitutionally or desirable politically, legally, and morally, if the current interpretation of the 14th Amendment is valid, then those who wrote the 14th Amendment were REALLY REALLY BAD AT WRITING LAW. I mean, really? Just a vague "privileges or immunities" that you're sticking a few lines down from the list of rights that we thought important enough to specifically bar the federal government from encroaching? No need to spell it out just a little? In all seriousness, how many hours in court have been wasted over the last century and a half that could have been spent doing something useful if they'd just been a little better at saying what they meant?

    Of course, same goes for the 2nd.

    @Maurice de Sully

    That's an interesting idea too: that incorporation was essentially an easter egg hidden in the amendment for later courts to find. Which seems to me like a really frightening way to write law.

  75. Dragonmum says

    @Lizard

    Exposure to speech that targets your race, religion, sexual orientation, dietary choices, etc., is inevitable. Learning to control oneself when one encounters it, and learning how to protest, dissent, and object without resorting to force (either directly, or via the state) is a skill people should be taught early on.

    Yes!

    School administrations have been so caught up in protecting our little snowflakes and "Think of the Children!" that they are delivering a message that prohibition is the way to manage life. That some ideas and symbols are so scary we can't even let them be seen, much less heard. They've missed the wonderful opportunity to teach the little darlings about the First Amendment, and those various skills Lizard points out. However, if the average student learned that the answer to expression that is perceived as offensive is more speech or expression, think of the Chaos! The Anarchy! (Yay!) The.. the… freedom! Not what most petty tyrants in their school fiefdoms want to face.

    I would be open to one limitation – similar to my home rule that my children were not allowed to use any word they couldn't define – in front of me. Children wishing to wear symbols or messages on their clothes should be also allowed the privilege of standing made to stand in front of their classmates and explain what those "decorations" mean. If the answer is "I don't know", the school will provide a clean, unmarked t-shirt to the unfortunate ignorant one. Can someone's expression be protected if they have no idea what they are expressing?

    This would also provide teachers a brilliant opportunity to facilitate "more speech" from other students who either agree with or are offended by said explanations. Started in the early grades, most "problems" could be turned in to extended learning experiences by high school.

    Oh, wait. That's not on "the test". Screw public schools…

    @Docrailgun

    Is it really so unreasonable for 'the authorities' (that could be a school administration, a city government, etc.) to ask the people involved to not wear something or do something specifically to provoke others?

    Yes. It is. "Things" don't provoke people. People allow themselves to be provoked. Thus it is that the Klan is issued parade permits, as are gay rights rallies. Either would "provoke" a huge number of my fellow Noth Carolinians, but we expect the public to behave in a "civilized" manner, which usually results in the usual number of counter-protesters holding equally offensive signs…

    @Mike

    If schools want to prevent violent people from being violent, maybe they should focus on the violent people rather than their potential victims.

    If a student gets in a teacher's face or seeks out another student to harass, that behavior should be dealt with when it happens. If a kid actually has a gun or makes a threat and actually has the means to carry it out, deal with it. But fingers? Bread? Cartoons of bombs? T-shirts? Zero tolerance? Fear and craziness run amok.

  76. Xenocles says

    @Dragonmum et al. –

    I think "Don't let it get to you" is excellent advice to give an individual. I try to cultivate that attitude in both my kids all the time. It's a very difficult idea to build a workplace around, though, because we're humans. Stuff gets to us more often than it should, and when it gets to you your work suffers. Learning to deal with harassment is an excellent life lesson, but so is learning to restrain yourself. Believe it or not, your child's future employer and his co-workers probably won't want to hear his opinions on everything whenever he feels like talking about them. Not only are office codes of conduct usually based around prohibition, the portions of the law related to workplace environment are too. I defy you to find an HR rep who answers a complaint with "Get over it." If anything the more practically applicable lesson is to keep your antagonism out of the workplace since that's almost certainly what will be expected of the kids when they grow up.

    It's far easier for a manager to insist that the offender refrain from his conduct than to insist that the offended put up with it, and it provides more consistently positive results. This is increasingly true as the supposedly offensive conduct departs further from the organization's mission. Johnny's feud with the drama club contributes less than nothing to the conduct of class, and the teacher ought to be empowered to tell Johnny to stow it.

  77. Dragonmum says

    @Xenocles

    Oh, if Jonny is actively disrupting class, it should by all means be dealt with swiftly and without mercy. I'm talking about symbols and messages on clothes, signs, etc,

    I acknowledge that's the reality of many of the repressive workplaces found today. I don't have to like it, think it's right or accept that it can't be changed. In my school fantasy, the feedback the "expressor" received from those expressed upon helps modify the behavior of the expressor, which allows them to internalize tolerance/appropriate conduct while still in school, which would greatly decrease the need for workplace restrictions or prohibitive rules of the state.

    Anyway, I was always a bad employee.

  78. amblingon says

    I don't want to associate with "mild racists", but if the alternative is "the best parties" made up of "right thinking people", maybe I'll reconsider that – the racists might be less exclusionary and self satisfied than your group.

    I'm actually totally fine with the suggestions that A) not being racist is a necessary condition for being right-thinking and B) parties without racist people are better than parties with racist people.

    I feel to see the controversy.

    Also, I love freerangekids! Great site.

  79. Good Comrade says

    I'm actually totally fine with the suggestions that A) not being capitalist is a necessary condition for being right-thinking and B) parties without capitalist people are better than parties with capitalist people.

    I feel to see the controversy.

  80. cthulhu says

    @docrailgun:

    I think you misunderstand liberals. The 'little guy, rustic, misguided, and illerate as he may be' is exactly who the liberal cares about. Thus, the labor movement, civil rights movement, etc.

    Of course "liberals" care about the little guy, as long as they can patronize him by telling him what he should think, what he should do, how he should live, where he should live, what gods he should worship, etc. That's the defining characteristic of the modern "liberal" (I use the scare quotes to distinguish the modern term from the definition of a classical liberal), that he must "help" the poor, benighted little guy, who's obviously too dumb to do his own thinking, and must be "helped" to make the "right" decisions.

    My position is that everybody has the right to go to hell in their own way, as long as it doesn't take somebody else with them. I might agree with the "liberal" that the little guy is in fact rustic, misguided, and illiterate, but that does not mean that I have the right to "correct" the little guy, in any way, shape, or form. Very, very few of us are smart enough to govern ourselves; what arrogance to think we can govern others! The best we can do is to set up governments to secure our rights (hey, where have I heard that before), where "our" means all of us, including that aforementioned rustic, misguided, and illiterate little guy.

  81. Trent says

    That's the defining characteristic of the modern "liberal" (I use the scare quotes to distinguish the modern term from the definition of a classical liberal), that he must "help" the poor, benighted little guy, who's obviously too dumb to do his own thinking, and must be "helped" to make the "right" decisions.

    You are talking about unicorns. You've got a made up definition created by an advanced and complex propaganda campaign that is creating a "with us or against us" line of thinking in the general public. It's one of the most successful propaganda campaigns in history IMO though it's capitalizing on the nearly 60 years of anti-communist propaganda by equating liberal = communist.

    And though you claim you think everyone has "the right to go to hell in their own way" you sure spend a lot of time looking down your nose at those you label liberals. In your disdain and contempt you should consider your own hypocrisy of looking down on people for looking down on people.

    Back to the story, several people have touched on it (and I don't agree at all with the supreme courts slow erosion of students free speech rights over my life time) but I can't help but believe that in most schools suspending these students would be for their own protection. If the school in question has even a small minority of African American student the intentional display of that flag by students would be interpreted as a direct attack on those black student who would then likely retaliate in a disruptive way that might even threaten the safety of the students with the flag. Put simply,
    most of the black people I know take a display of that flag as a insult and threat directed at them at will react like it is. Suspending the students may have been the only way to protect them. Such a line of thinking would depend on the ethnicity of the student body but it's not out of the realm of possibility that the administrators believed that displaying that flag was a call to violence or would result in violence before the day was out. The essay defending the suspension which Ken attacks is silly on it's face. Though with the way the supreme court has been ruling kids might not have rights soon enough.

  82. Have Blue says

    Not getting why anyone would think wearing a shirt portraying the flag of the Democrat Party would indicate one was a member of the Tea Party.

    Now had they been wearing a shirt with the Gadsden Flag the author would have a case.

  83. princessartemis says

    @DocRailgun

    I think you misunderstand liberals. The 'little guy, rustic, misguided, and illerate as he may be' is exactly who the liberal cares about. Thus, the labor movement, civil rights movement, etc. The conservative apparatus has somehow convinced people that they are the champion of the average man and the middle class, that 'liberals' are all coastal gay brown people boogeymen who only care about taxing and spending. Keyser Soze has worked on the GOP's image a good thirty years now.

    I'm going to go out on a limb and suggest that both liberals and conservatives genuinely care about 'the little people' and that both liberals and conservatives are full up to the top with hard working propaganda machines out to make the other look bad.

    So, in fact, "the conservative apparatus" has no real need to convince anyone that they are a champion of the average man because they really are, every bit as much as liberals are. They just have different ways of going about it, different enough that they have a hard time recognizing one another's sincerity.

  84. grouch says

    If there's a poll going on here, I vote for William's explanation as being the most likely.

    The administrator should have avoided his desperate ranting about the 1st Amendment in attempting to justify his action: Capes are dangerous, even when they start out as flags. Students wearing capes could get sucked into the stampede when bells ring, or into the ventilation system. See The Incredibles. No capes.

  85. Tarrou says

    I see Lizard has been mining my thoughts via telepathy again, and posting them here more eloquently than I can once again. I am left with only snark to contribute.

    Anyone else wondering how the confederate flag is anti-gay? Anti-US, certainly, anti-black as well. But anti-gay? This conflation concerns me. It is absolutely possible the students intended it as an anti-gay protest, but why would that be? Are they that uneducated about confederate history in the south? I mean, a Nazi flag would carry both racist and anti-gay overtones, but confederate? Just one more way the disaffected co-opt the terminology and symbols of any discredited movement to tweak the Man.

    See also: Satanism, Marxism, Anarchy

  86. says

    @Tarrou

    Anyone else wondering how the confederate flag is anti-gay? Anti-US, certainly, anti-black as well. But anti-gay? This conflation concerns me.

    My take – a mashup of Albion's Seed and Mecius Moldbug – is that the US has four dominant cultural strains:

    * New England Puritan
    * Mid Atlantic States Quakers
    * Southern Tidewater aristocracy
    * Southern Scots Irish

    The War of Southern Secession and Northern Conquest was a cultural war, between an alliance of the first two, on the one hand, and the latter two, on the other.

    The first two won.

    And then, after winning, the New England Puritans (who were in the process of morphing into Unitarian-Universalist-Harvard-New-York-Times-Progressives) rewrote the history books, seized the mechanisms of education and governance, and have run the country with an increasing tight fist for the last 160 years.

    Someone who feels culturally put upon is not blindly lashing out when they seize on the New York Times and Harvard as their enemy and seize upon the rebel battle flag as their brand – they have taken the red pill and seen things exactly correctly.

    And, for the record, I say that as a sushi-eating, latte-sipping, gay-friendly, racially-tolerant, Whole-Foods-shopping New Englander. …albeit one who is deeply uncomfortable with the degree of victory that the New England has won and the lack of tolerance it shows for its defeated foe.

  87. Peter Henry says

    From the movie "The American President", (1995):

    "America isn't easy. America is advanced citizenship. You gotta want it bad, 'cause it's gonna put up a fight. It's gonna say "You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can't just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest. Show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the "land of the free". "

  88. says

    Two points:

    First, Rowe's credibility not helped by "I wrote a lot of words and have lots of unfinished projects" credential. By that standard, I'd be a friggin genius on constitutional law. Nor by the USE of lots of CAPITALS to EMPHASIZE THINGS instead of using the strength of language. Nothing brings out your crazy like *excessive* typographical EMphaSIS!!!

    Second if any speech needs banning as disruptive, it's "pumpkin spice" as applied to anything but pie. Think of the children.

  89. CJK Fossman says

    However, I think the teaparty sees the federal government, and all of its officials, as the elite, and its wealthy backers as merely part of the populace.

    That is probably what the non-wealthy members of the Tea Party believe. They are mistaken about the wealthy backers.

    Some of the Tea Party's wealthy backers, for example, believe that corporations should be free to litter the landscape with spilled oil and release benzene into the air. I find it hard to believe that any non-wealthy Tea Party member would welcome an oil spill in his back yard or a nice dose of benzene in his air supply.

    The wealthy backers of the teaparty, along with its less wealthy majority, see themselves as rising up against the governmental elite who seek to control the populace through far reaching federal regulations.

    I know, right? Things get so hard when you have to admit your products cause cancer or you have to clean up the messes your company creates. Or even (OMG!) your income tax rate is higher than the folks whose air you poison.

  90. CJK Fossman says

    My take – a mashup of Albion's Seed and Mecius Moldbug – is that the US has four dominant cultural strains:

    * New England Puritan
    * Mid Atlantic States Quakers
    * Southern Tidewater aristocracy
    * Southern Scots Irish

    What about north of the Ohio terminal moraine and west of the Mississippi river?

  91. cthulhu says

    @Trent:

    And though you claim you think everyone has "the right to go to hell in their own way" you sure spend a lot of time looking down your nose at those you label liberals. In your disdain and contempt you should consider your own hypocrisy of looking down on people for looking down on people.

    I never said that I had to approve of how others exercise "the right to go to hell in their own way" + the very important part you left out, "as long as it doesn't take somebody else with them." But that's part of the point: I can disagree (strongly!) with what somebody else chooses to do, look down my nose at them, assert my moral superiority, etc., without asserting that I have the right to fix them. My freedom ends at your nose, and all that. Kinda like "I may despise what you say, but I'll defend to the death your right to say it." Please advise me of wherein lies the hypocrisy I'm supposed to consider.

    And as far as talking about unicorns, I suggest you go read some Tom Wolfe for many, many examples of how the scare quote "liberals" have been trying to remold "the common man" (i.e., our rustic, illiterate, misguided little guy) in their image, and how it keeps backfiring. From Bauhaus to Our House is a great place to start.

    [plonk]

  92. says

    @CJK Fossman

    What about north of the Ohio terminal moraine and west of the Mississippi river?

    Not meaningful at the time of the Civil War.

    Since then, I'd say that accent maps provide a good view of the smearing and blending of sub-cultures.

  93. Zazlo says

    Ah, good, the comments died down. I can safely post my hyper-prolix commentary without derailing anything. Phew! Anyway:

    I don't know if this is even a legal issue, really. As far as it is, I essentially agree with the view presented here, i.e. a strong-as-possible 1st amendment take on it. I needn't go into detail, that argument's been well-presented already (I think Lizard and Dragonmum covered my points here). However:

    Let's say it's while ago – 1923, 1947, any time more than 60 or so years ago. And you integrate schools. One could argue, at that time, that a black student's mere presence is such a distraction, that they should be suspended or expelled. If there were a few. (If there were a lot, the parents would most likely have moved their kids to a different school.) So you'd end up with segregated, or largely segregated, schools. (This is often the case in America currently, but through a more elaborate multi-step process in various socio-cultural, economic, political, etc., ways – as an upstate New Yorker, I see this a lot, even in my fair city with it's Frederick Douglas monuments and strong progressive history, and agree with Clark's sentiment about a perfidious hypocrisy of north-eastern liberals)

    It comes down to large scale norms of what's okay or not. One of the basic issues here is "disruptiveness," which, barring actions like screaming and running at someone with your fists raised, can only be defined in terms of social and cultural norms. We're really not far past the tipping point where it went from "racism is fine" to "racism is right out." In our example alternate past, if you go back far enough, the genuine, provable distraction could be a student mob beating of the new classmate. I don't think we're at where it's a thing that we bully and beat up racists for being terrible – as we always 'know' when we hate, whether we act or not on it, anyone, as all humans do (if you have never hated anyone, or wished ill on anyone or, or had thoughts of images in which they are punished or judged, then I stand corrected) – but we likely will be sooner or later.

    And interestingly, don't think I don't have an interior mental list that, generalized, would include racists. This is a list of total fucking idiots. Speaking personally and not legally or as a proposed policy even necessarily for myself: fuck 'em.

    Where for me it gets dicey is that these are people 18 and under. Kids, essentially. With adults, yeah, First Amendment all the way. I would recommend the involved groups have an open discussion. Allow it to be something for everyone to discuss and mull over. Learning could be successfully wrung out of the situation. (See Dragonmum's comments.) But if we're talking about ten year olds? Twelve? Fourteen? Sixteen?

    I have no earthly idea.

    [side note: I think Clark's cultural overview of America is more or less correct. As a northerner, it's easier for me to see the individuated humanity of the Puritans and Quakers, and have a more removed view of the Tidewaters and Scots-Irish, but I think they were all bat-shit crazy, and whoever won and re-wrote the books would've fucked it up just as royally. The enemy of my enemy is not my friend – though the Puritans disgust me (the Quakers don't bother me so much, though there is Nixon, interestingly….), I don't see either Southern faction as having anything better to offer, just different. Though that's true of most any four cultural groups from Earth. The number of cultures/sub-cultures I think are even minimally sane in history I could count on two hands, and they were generally limited either in geography or duration, or both. Can't think of any that lasted more than a couple generations. I'll stop there before I start really rambling and asking if anyone's read "Beelzebub's Tales to His Grandson."]

  94. Steven H. says

    On an almost completely unrelated note, am I the only one who wanted to slap the crap out of the idiot in the picture with the sign "descent the highest form or patriotic"?

    Dissent, idiot!

    And don't start me on lack of a verb…;-)

  95. CJK Fossman says

    I suggest you go read some Tom Wolfe for many, many examples of how the scare quote "liberals" have been trying to remold "the common man" stories that Tom Wolfe has written in his engaging and entertaining style.

    There, fixed that.

    Are you aware, by the way, that Tom Wolfe was present at exactly one (1) Prankster event, the Acid Test in San Francisco? And yet Wolfe leaves you with the sense he was with the Pranksters throughout their journey. So we know he's willing to distort things a little in order to sell books.

    Yah, I'm aware of Wolfe's Ph.D. in American Studies. You know, right, that American Studies is an offspring American Lit? So it's like looking at society through the distorting lens of social science with the additional distortions courtesy of literary license.

  96. says

    @Zazlo

    Ah, good, the comments died down. I can safely post my hyper-prolix commentary without derailing anything. Phew! Anyway:

    I tend to enjoy the hyper-prolixy comments myself.

    [side note: I think Clark's cultural overview of America is more or less correct.

    Thanks!

    As a northerner, it's easier for me to see the individuated humanity of the Puritans and Quakers, and have a more removed view of the Tidewaters and Scots-Irish, but I think they were all bat-shit crazy

    Indeed.

    and whoever won and re-wrote the books would've fucked it up just as royally.

    You say "f-ed up", as if errors were made. In fact, I think that cultures always write propaganda, so the Puritans actually did a really good job of propogating their lies point of view, and I'm sure the Tidewater Aristocracy would've done the same.

    The enemy of my enemy is not my friend – though the Puritans disgust me (the Quakers don't bother me so much, though there is Nixon, interestingly….), I don't see either Southern faction as having anything better to offer, just different.

    I loathe with a burning passion both the politics and the culture of the Tidewater Aristocracy.

    I pick and choose from the politics and the culture of the Scots Irish: I like self sufficiency, family, religion, hunting, and freedom. I dislike meth, racism, low future orientation, disdain for education, disdain for "nerds", animal neglect and cruelty, etc.

    I find the Quakers mostly congenial.

    I pick and choose from the politics and the culture of the Puritans: I like anti-racism, the education, the reading, the openness to trade. I dislike the self-satisfaction, the universalism, the sanctimony, the need to humiliate and crush their ideological foes, etc.

    The number of cultures/sub-cultures I think are even minimally sane in history I could count on two hands, and they were generally limited either in geography or duration, or both.

    Would love to see your list.

    "Beelzebub's Tales to His Grandson."

    I have not read it, but Wikipedia amkes it sound fascinating.

    $2.50 on Kindle? Done!

  97. says

    @CJK Fossman

    I suggest you go read some Tom Wolfe

    I am a huge fan of Tom Wolfe, and am currently in the middle of A Man in Full. I put it down a week or so ago – the anxiety provoked by the "car gets towed" scene was too much for my frayed nerves (only half joking, really). Need to pick it up again soon.

  98. says

    So it's like looking at society through the distorting lens of social science with the additional distortions courtesy of literary license.

    The literary / art scene is crazy. I read that somewhere.

  99. Zazlo says

    @Clark

    Was just reading the post and comments on The Golden Bough, and had I waited a bit, that might've been a better place to shoehorn in "Beelzebub…" – what I find fascinating about it is that it's a totally fictional history of Earth, yet makes a lot of sense – i.e., it almost might as well be true. This, then, was intended to lead to a grand skepticism of all narratives. Having read it in my early 20s, it may be dearer to me than others for whom it comes later. Gurdjieff's introduction and style are amusing – intensely formal, often prolix, and willfully difficult. He insists you read the book three times in three specific ways. He further insists and warns many readers against even reading it. He's kind of annoying in the best, most fascinating way, much like Crowley or Nietzsche, two other authors that deserve both one's utmost attention and one's very best grain of salt.

    As for your cultural syncretism, I largely agree (we differ mainly on – surprise! – religion) – I too pull out what I want from any and all cultures, narratives, individuals as I see fit, and don't think I've ever wholly absorbed any one system. I am personally off-put by the Scots-Irish honor culture, but that may be from some of my nordic law-of-jante type thinking. I'm at least as off-put by puritanical self-righteousness and moral certainty. And having seen it more often, and up close, feel a much more detailed revulsion.

    As for that list. I'll have to think about that. It's in a sort of virtual memory – it's exformation, if you will. But I ought to compile it, at least for my own edification.

    Hope you enjoy the book, or at least enjoy not liking it.

    I also prefer longer than shorter comments, though I'm mindful of the multitude of readers, as well as a non-trivial amount of disdain for logorrhea amongst the literate. I try to balance my David Foster Wallace writing style against the finite time of anyone who might hear or read me. Just because I've read, as an appropriate example, Infinite Jest four times doesn't mean that a lot of people want to read it even once, or at all. And anyway, it would be fun to add "brevity" to my skill set, though it may not be in the cards. All of which is mostly long-form for "hey, thanks!"

  100. says

    Hope you enjoy the book, or at least enjoy not liking it.

    I take more joy than you can imagine in disliking things; I'm sure it will go down well either way.

    I try to balance my David Foster Wallace writing style against the finite time of anyone who might hear or read me.

    You really should have worked a "finite jest" joke in there. Just saying. ;-)

    And anyway, it would be fun to add "brevity" to my skill set

    At day's end I laugh three times, then go back inside.

    Those who enjoy brevity can stop by for a showing. Those who like prolixity can read my posts.

  101. David C says

    Where for me it gets dicey is that these are people 18 and under. Kids, essentially. With adults, yeah, First Amendment all the way.

    But that's not going to solve the problem, ultimately. Leaving aside the entire question of free speech rights for minors, 18 is considered to be an adult, and there are plenty of 18 (and even 19) year old students. Are you going to claim that the seniors who are over 18 can wear clothing that the ones who are 17 can not? That sort of policy would combine the worst of both worlds; it would stifle the speech of some students, it would fail to prevent disruption, and it would prevent the speech from being answered by more speech because only SOME students would be able to respond in kind.

  102. Zazlo says

    @ David C

    I didn't mean to imply any sharp boundary – more my own uncertainty about the application of laws and principles to all human beings. I agree, there's some fuzzy boundaries. Some 16 year olds are remarkably mature. Some 30 year olds have the maturity of a 10 year old. There's no formally decidable non-arbitrary boundary between adult and non-adult. As an adult, my self as a non-adult was fine with expression, and I think probably that's best, overall, for non-adults. The reason I said "12? 14? 16?" is exactly to highlight the impossibility you mention. I was not stating a policy, I was stating my own uncertainty and lack of conclusion on the application of this subject's principles on ages more-or-less "school age."

  103. CJK Fossman says

    So, in fact, "the conservative apparatus" has no real need to convince anyone that they are a champion of the average man because they really are, every bit as much as liberals are.

    Srsly dude?

    It's really hard to square that up with Mitt Romney's comments characterizing 47% of his fellow citizens as moochers and takers.

    Or how about this? Where I live, the phone companies over-reported the number of people on the federal free phones program; they committed fraud. How does my conservative state's government respond? By proposing to levy a charge on service recipients. The purported purpose? To "combat fraud."

    Remember trickle-down economics? That was a conservative idea if my memory serves. Never mind that the trickle down valve seemed to be stuck at a very low flow, it now seems that its output goes out of the USA as the conservative constituency moves jobs to places with lower wages.

  104. Dan Weber says

    made to stand in front of their classmates and explain what those "decorations" mean

    Do they need to get the answer "right"?

    What if the answer is "all I know is that you wanted to prohibit me by force from saying it, and that's reason enough for me to want to say it"?

  105. I was Anonymous says

    @Clark,

    If only I could find a high quality rip of Dale in King of the Hill talking about the gold fringed admiralty flag.

    I'd rather hear Boomhauer talk about it…

  106. Curmudgeonly Ex-Clerk says

    Zazlo said:

    Where for me it gets dicey is that these are people 18 and under. Kids, essentially. With adults, yeah, First Amendment all the way.

    I used to have some sympathy for this Clarence Thomas-like position, but no more. Contemporary American public schools resemble nothing so much as a penal system. The best way to prepare citizens for discourse in a democratic republic, including the rough-and-tumble kind the First Amendment (rightly) permits, is not to deprive pupils of free speech rights in an effort to protect some subset of the student body (or school adminstrators) from speech they do not wish to hear.

    In myriad ways, the public school system seems to exist for no other purpose than to accustom the state's subjects to tyranny. Drug testing in order to participate in extracurricular activities; zero tolerance policies that arbitrarily punish innocuous conduct; discipline for off-campus behavior unassociated with school activities (including monitoring of social media) — curtailment of speech rights seems cut from the same cloth as these miserable, authoritarian policies.

  107. amblingon says

    I'm actually totally fine with the suggestions that A) not being capitalist is a necessary condition for being right-thinking and B) parties without capitalist people are better than parties with capitalist people. I feel to see the controversy.

    Well, I'm sure some pro-capitalism people will disagree with what you wrote, just like some pro-racism people will disagree with what I wrote. But I imagine there are more people on this blog who identify as the former than the latter, and therefore would expect more controversy around your post than mine.

    What exactly were you trying to point out with your comment?

  108. Zazlo says

    @Curmudgeonly Ex-Clerk

    Hmm, that's twice now that my admission that my conclusions on law re: adult behavior is firmer than re: non-adult has been taken as some kind of support for censorship, or really any part of the American educational system. It's not. Our educational system is a massive failure on many levels.

    I agree with your viewpoint. In my opinion, the situation of these kids wearing flag-capes is a source for discussion and learning. But of note is that that's not going to happen in most American schools. Why? Because American schools are not about teaching students how to learn, or investigate, or acquire and become proficient with critical thinking skills. Even with a mediated discussion on the meanings of symbols, free expression, etc., do you think most 12 year olds or 14 year olds or even 16 year olds are going to have a rational, informative discussion, free from rampant emotional reactivity? The age at which individuals become able to handle full free expression is a non-negative real number. For some it may be 8. For others, 15. For others still, never. I still think full free expression is the best option though, even if, in the short term, it's troublesome, because in the long term it's a better overall system, it's a better way of teaching, it's a better thing for a society and culture to do. I only brought up the physical age of certain parties involved, with the unsaid implication that this bears on their intellectual and emotional maturity, and that I thought those facts made it a murkier issue in practice – an acknowledgement of incomplete information, and an intellectually honest display of where I knew I couldn't make a fully defensible assertion. Given that some others have asserted that they think certain types of speech are 'disruptive' or that schools can make such policies, I'm baffled at why, twice now, I've been quoted by people I agree with who write as if they're disagreeing with me. I'll gladly fully accept that I was unclear in my writing, and apologize for any confusion I caused, if that helps at all. It may have been unclear that I was generalizing more in those passages – wondering aloud how it would play out in, say, 7th grade, or 3rd grade, or kindergarten. It could be that all those issues are resolvable in a way, and full free expression works at all levels, but it's an area I've not looked into enough.

    P.S. Either way, I still want kids off my goddamn lawn.

  109. Matt says

    @Trent

    but I can't help but believe that in most schools suspending these students would be for their own protection.

    "suspend them for their own protection" is a phrase that rubs me the wrong way. To me, there's just a lot that's not right with that concept.

  110. says

    "Those who call for censorship in the name of the oppressed ought to recognize it is never the oppressed who determine the bounds of censorship." –Aryeh Neier

  111. AlanMorgan says

    What if the answer is "all I know is that you wanted to prohibit me by force from saying it, and that's reason enough for me to want to say it"?

    If you are going to demand freedom of speech then have the decency to understand what you are saying first.

  112. cpast says

    In contrast to the school's response, I think that at least some classes could benefit by using the students wearing the shirts as a chance to talk about symbols. Of course, it'd require some initiative on the part of teachers, but this could be an actual educational experience. If kids complain, it'd be a chance to teach them how the First Amendment protects this sort of stuff, and how dissent is good.

    Hey, I can dream, right?

  113. Rick says

    The funny thing about all this is that I doubt the two students really had a clue about what a Confederate flag meant. We're talking about a war that happened 150 years ago. To these kids Viet Nam is ancient history and the Civil War might as well be a fairy tale.
    My youngest son put a Confederate flag on the back window of his pickup truck in high school. I was astonished since I had no idea he knew what it was. When I questioned him he had some vague knowledge of the Civil War but no clue what others might think the flag meant. He was simply supporting others students who had the flag on their cars and were told by the principal they had to remove them. The students prevailed and my son removed the flag.

  114. Mickey Mantle says

    My parents wanted me to be a lawyer in the worst way. After 56 years on this earth and reading lawyer blogs for the past 10 years, I am so blessed that I did not become an attorney! Thank you G-d! And they wonder why we hate most of them……

  115. says

    Here's what I can't figure out about the Tea Party: Demographic surveys report that its members generally have above-average incomes and education levels, and yet the signs. Fuckin' A. The placards that its members carry at rallies frequently fall into one of two mindboggling categories: the functionally illiterate (see illustration) or mashups of the craziest, most dimwitted right-wing chain-letter rhetoric and imagery imaginable, like Obama as a Hindu god but simultaneously also a secret Sharia Muslim and a radical socialist. It simply is not an adult level of discourse. Descent from the patriotic of Patrick Henry, indeed.

    What gives? The Tea Party is heavy on "local notables" who fear usurpation of their historic power by central authorities. Are American local elites really that stupid? The ones I've known certainly don't seem to be. And even if it's just a small number of stupid signs being amplified by sensationalistic or hostile news media, why wouldn't the adults at the rallies do everything in their power to nip that shit in the bud? This is a conservative movement, many of whose members highly value discipline and respectability, so I'd expect some of them to ride herd on the dipshits and say, "Excuse me, sir, you are a fucking idiot, and you're making the rest of us look awful. Leave." I understand that that's pretty much what was done to a yahoo who crashed an Oath Keepers' rally in front of the White House with a Confederate battle flag last week. Or does the zeal for populist crazy overpower the desire to look presentable, so that peasant village idiocy and superstition is actually supported by the elites?

  116. says

    @stillnotking 12:29pm:

    I hate to think of William Jennings Bryan as being of that ilk, but it makes some sense. He shifted his focus from the grange populism of his early career to retrograde authoritarian religious factionalism at the Scopes monkey trial. A long way down from "Cross of Gold," I'd say.

    Coughlin and Wallace could have done much more for their country if they had stayed away from the antisemitism and the racebaiting. They ruined their legacies with that poison.

    I find something a bit tragic about all three of these guys. They made important counterpoints to indisidious plutocratic talking points, but they couldn't resist screwing the pooch by getting involved with noxious bigotry. But they made the beds in which their reputations now rest.

  117. David Schwartz says

    If you are going to demand freedom of speech then have the decency to understand what you are saying first.

    What they're saying is that if one group of students gets to wear a symbol they find offensive, then they should get to wear a symbol that others find offensive. Yes, they really are using a symbol that normally communicates one thing to, in this unusual context, communicate something completely different.

  118. says

    I think that the school administrators should have taken the children (and, if appropriate, their parents) off to a room for a private chat, and laid the following ideas upon them:

    1. If you are simply wearing the shirts as "revenge" because somebody wore a shirt that offended you, then (a) tough shit, nobody has a right to never be offended, and (b) are you going to spend the rest of your life simply reacting to what others do or say, or are you going to be an independent-thinking person?
    2. When you apply for college or try to get a job in the Real World (that place that you do not yet live in, but will have to live in eventually), what do you think that prospective colleges or employers will say or think when they search your name on the Internet and there in the middle of the search, are a bunch of news articles about how you felt it was OK to behave like an immature little dipshit?

  119. Castaigne says

    @mud man:

    They SAY they were expressing "Southern pride".

    A common codeword in the Deep South for "I'm a Neo-Confederate who believes in the abolition of the federal government, the reinstitution of slavery, and the rise of the Confederacy as advocated by the League of the South." You get a lot of these in the rural parts of Georgia (not to mention the other Deep South states).

    =====

    @JTM:

    Given that the Confederacy is long gone, and no current threat to the United States, showing agreement with the Confederacy by displaying the flag wouldn't be grounds for government sanction or restriction.

    I would disagree heavily with this statement.

    =====

    @Andrew Roth:

    Are American local elites really that stupid?

    Shit yes. I have been asked previously by friends why I trust the state government over local government and federal government over both. Part of the answer is that I find a shitload less stupidity the higher up the government hierarchy I go. The second answer is the corruption. When people IRL tell me the federal government is corrupt, I laugh and say they're nowhere near as bad as the government of X County or X Municipality they live in. And they are forced to agree. It's nothing but Boss Hoggs and County Barons down here, even in Metro Atlanta.

  120. says

    BONG HiTS 4 JESUS

    Morse v. Frederick, 551 U.S. 393 (2007), was a United States Supreme Court case in which the Court held 6-3 that the First Amendment does not prevent educators from suppressing, at a school-supervised event, student speech that is reasonably viewed as promoting illegal drug use.

  121. CJK Fossman says

    Demographic surveys report that [Tea Party] members generally have above-average incomes and education levels,

    In the rural South, having an above-average income sometimes means "I'm related to someone who once owned a plantation." Having an above-average education means "I'm a legacy student at ."

  122. CJK Fossman says

    [Bryan, Coughlin, Wallace] made important counterpoints to indisidious plutocratic talking points, but they couldn't resist screwing the pooch by getting involved with noxious bigotry.

    You haven't noticed that it seems to be part of the same mind set?