Clinton Prosecutor Now Targeting Free Speech

Virchull tells us about a case the Supreme Court has agreed to hear, in which former special prosecutor Kenneth Starr will take the side of an Alaska school board against a student who displayed a rude banner off school property. The banner read "Bong Hits 4 Jesus" and it got the student suspended. He and his parents sued the school board for violating his First Amendment rights. The case is nuanced: while the student did not display the banner on school property, he did do so during a school function. Starr is said to be arguing the case for free.

Re:Fred is a retard

[extra the woos]

I used to go to JDHS as well ;p

I was not there when this happened, however. (Was only there for a semester).

This basically boils down to one thing: The principal (morse) is a douchebag. Her husband also happens to be quite racist against natives--(for bonus points for non Juneau people try to find out what his job was--might still be, I'm not living there at the moment)! I honestly don't know if she is still the principal there or not and I don't care enough to check. I do know that the previous principal never would have given two shits if this kid did that.

The kid just wanted attention and put up some nonsensical sign. And get real, the sign didn't change anyone's mind on whether or not they wanted to do drugs. When I went there almost everyone I knew smoked weed or drank. Yes, even some teachers.

'Stamp out apo'strophe abu'se now!

[phunctor]

"'" does NOT mean "Look out! An "s" is approaching!". Hone'st. -- phunctor

U.S. Supreme Court already decided this

[ReallyEvilCanine]

Hustler Magazine, Inc. et al. v. Jerry Falwell [bc.edu]
No. 86-1278
SUPREME COURT OF THE UNITED STATES
485 U.S. 46
Argued December 2, 1987, decided February 24, 1988

In Garrison v. Louisiana, 379 U. S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill-will his expression was protected by the First Amendment:

"Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth." Id., at 73.

Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.

And, as we stated in FCC v. Pacifica Foundation, 438 U. S. 726 (1978):

"[T]he fact that society may find speech offensive is not a sufficient reason for sup pressing it. Indeed, if it is the speaker's opinion that gives offense, that con sequence is a reason for according it constitutional protection. [56] For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." Id., at 745-746.

See also Street v. New York, 394 U. S. 576, 592 (1969) ("It is firmly settled that . . . the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers").

It was an 8:0 decision written by Rehnquist, and agreed to by Scalia, Kennedy and O'Connor. "Bong Hits 4 Jesus" is hardly "fighting words" which could lead to an incitement to public disorder so how the hell does Starr think he can attack this?

Re:Some thoughts

[killjoe]

Eliminate public schools and I guarantee you at least 30% illiteracy in the US and at least 50% of people who are unable to solve simple math problems.

Most people can't afford private school and private schools won't take most children. Most people are unable to teach their kids anything either.

Re:Some thoughts

[Hope Thelps]

It seems to me that this was a school function, at least from reading the CNN version. "They had been let out of classes and were accompanied by their teachers." It was like a field trip, and they probably went back to class afterward. I wish the article made it more clear.

If you're sincere in wishing that the article was clearer then you might want to read the appeals court ruling [uscourts.gov] which summarises the findings of fact as well as the appeal court's application of the law in this case.

For what it's worth, no it doesn't sound like they went back to class afterwards, or at least this wasn't enforced. From the ruling:

Other students filed affidavits saying that they were just released, not required to stay together or with their teachers, except for the gym class, and school administrators did not attempt to stop students who got bored and left."

I appreciate that you only drew an inference from the article and made it clear that you were doing so. Others have just announced without support that the students were marched back to class afterwards, or that Joseph Fredrick was a child at the time of the incident (compare to the ruling : "Frederick was an adult citizen of Alaska, not a minor, at the time he displayed the sign.").

Re:Settle down

[Legion303]

"there's a limit to what we allow in schools."

Those of us who at least skimmed the fucking article (or even took a cursory glance at the writeup) know that's a moot point.

Re:Settle down

[Hope Thelps]

It would seem to a poor Brit here the case is simple. Are the school responsible for the childrens safety?

This case isn't about a child. It's about an adult (18 year old at the time of the incident) student by he name of Jospeh Fredrick who didn't attend school that day, although he was near the school at the time of the incident. If you're interested in the issues then I recommend reading the appeal court's ruling [uscourts.gov].

Re:Give thanks to Starr

[sm62704]

You say "might be worthy", personally I don't think ANY speech is worthy of censorship. Speech I disapprove of is the speech that most needs protecting.

Look what free speech did for Michael "Kramer" Richards. Neonazis shoot themselves in the feet all the time; abhorrent as their words are, they are their own worst enemies.

<sarcasm> Ban Kenneth Starr's speech! Forty million dollars to investigate a blow job? WTF? That's the kind of speech that should be banned!

Re:Comes down to the particular "nuances"...

[ReallyEvilCanine]

If the court finds that the student was not in the care of the school, well, I think it pretty much ends there as there is absolutely no way the court will allow the school to censor otherwise protected speech, nonsensical or not, made on a student's own time.

In this case the Appellate Court has already found that the student was illegally censored.

I hope the SCOTUS finds that the student was under the care of the school

The student sure as hell doesn't. The Appellate Court found that Tinker applies to the case which implies that Frederick was under school supervision while exercising his speech. The same decision ruled out the Hazelwood (actually referenced as "Kuhlmeier") decision:

[6] We therefore hold that Frederick's punishment for displaying his banner is best reviewed under Tinker, rather than Fraser or Kuhlmeier. Tinker requires that, to censor or punish student speech, the school must show a reasonable concern about the likelihood of substantial disruption to its educational mission. Appellees conceded that the speech in this case was censored only because it conflicted with the school's "mission"

Kuhlmeier is unlikely to be tested because it's only applicable to school-sponsored activities. Since the students were free to go and were unsupervised, it would be hard to argue that Frederick's sign could be seen as school-sponsored, certainly less so than the Coke-fight which broke among other students. Starr may argue that by letting the students out with the intention that they attend the parade, school sponsorship could be implied, but again the Appellate Court has already stated that this event was non-curricular; it couldn't even fall under the brad scope of "social studies".

Re:Perhaps he too is looking towards 2008

[RealGrouchy]

Maybe he is joining Newt Gingrich on his assault on free speech in a effort at being Newt's running mate.

Here's the Youtube version [youtube.com] of Olbermann's Gingrich-killing-free-speech rant.

- RG>

Re:Some thoughts

[qazwart]

Did you read anything about this case?

According to the news reports: Some kids left the school property and went to local eateries, some kids horsed around, some kids went home, etc. Teachers did not line students up and escort them to the street where the torch ceremony was taking place. Does that sound like a "school sponsored event"? Apparently, there was very little school supervision. It sounds more like school was suspended to allow kids to watch the event.

Schools also have little right to ban free speech even inside a school. Tinker vs. Des Moines stated that students do not "shed their constitutional rights when they enter the schoolhouse door." And, apparently in this case, Fredrick, the student who was suspended, hadn't even entered school property that day.

There is a similar case, Bethel School District vs. Fraser. In this case, a student gave a speech full of sexual innuendoes at a school assembly. The Supreme Court ruled against the student because the assembly was a school sponsored event and the school had a policy where "[c]onduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." That assembly was on school grounds, students were strictly supervised and were required to either attend the assembly or go to study hall. Compare this to this event where classes were merely let out, and students could choose to go watch the parade or go elsewhere.

I am also against public school uniforms for many of the same reasons. Schools love uniforms because it shows "they're doing something" while not costing the school a penny. I've successfully fought several school uniform cases. It violates freedom of religion where students are required to wear clothing that violates their religion's dress code. It violates freedom of speech where uniforms prohibit armbands. But, I've been mainly successful because I traced money changing hands between administrators and school uniform companies. Usually, school uniform requirements are silently dropped in order to avoid embarrassment. Students pick up on this change of policy with in a week.

I find that your attitude rather distressing. Schools when given absolute power over student lives abuse it. In the Georgetown Independent School District in Texas, the principal decided to ban Star of Davids. She said they were a symbol of Satanism. Do you believe that is constitutional? In Detroit, some schools tried to crack down on Moslem women wearing head scarfs. Is that constitutional? You also seem to believe that schools may simply flog students for almost any reason. Do you really believe that?

I also find your argument that a school is just the building disingenuous. Do you believe when a news report says "The White House says..." that the building is talking? When we talk about schools, we are talking about the administrators who run the schools.

We need to actively challenge school administrators more. Too many students get randomly suspended because administrators simply want to show they're "in control" and won't tolerate any dissent. School administrators sometimes suspend students simply to put the blame elsewhere. I've had cases where students were suspended because they were involved in a school sponsored activity that later proved to be embarrassing. (like the laser printer episode).

The problem is that most administrators know they can get away with it because they will simply suspend a student for 3 to 10 days. By the time the student goes through the appeals process and into a local court, the suspension is over and the damage has been done. At that point, most students simply want to get back on with their lives.

Re:Help non-native speakers. What does it mean?

[Anonymous Coward]

It's a parody of the phrase "honk for Jesus" [google.com], a shorter form of "honk if you love Jesus"; [google.com] a famous car bumper sticker. A bong [wikipedia.org] is a device used to smoke herbs and a bong hit [urbandictionary.com] is what I miss the most about my youth.

So we have a student making a banner that says "Bong hits for Jesus". Most Christians would be against smoking weed, the suggestion that they should self identify as a group by getting stoned is therefore ironic. The banner is a humourous and ironic exaggeration of the "honk for Jesus" meme, a work of satire.

Basically then, his statement means that freedom in the US has been cirumvented by a bunch of humourless, intolerant morons who would apparently prefer to live in Iran or the PRC.

Hope that helps.

Re:This guy hates freedom

[An Onerous Coward]

not one state has laws against adultery.

Ahem [christianparty.net]. I think it would be more correct to say that no state enforces adultery laws. Good thing, given that about half of married people cheat at some point.

Re:This guy hates freedom

[Cerebus]

"You say Bush lied, where's the proof?"

Google Iraq and "yellow cake" sometime.

"Anyway, just try to think, I know this may be hard for some libs, for yourself. What if he didn't lie, what if Islamists can be evil, what if they're not joking when they say they want to kill us."

Do you put words in other peoples' mouths often? Name me one liberal who says that anti-American Islamic fundamentalists *don't* want to kill Americans. Name me one liberal who thinks anti-American Islamic fundamentalism is a *good* thing.

Can't? Didn't think so.

The difference between you and us is *how to deal with it*.

"This war is a very important thing if we are going to stop extremist Islam in the world, [...]"

Here's something to twist your little noggin: You can't kill an idea with a bullet.

"[...] to have a country that is on our side other than Israel in the middle east is a good thing."

Here's another little geo-political fact to twist your little noggin: Nearly *all* of the major Middle Eastern nations (except Syria and Iran) *are* on our side; they are dependent on the US and EU for arms or aid or oil cash. The fun part is the balancing act these governments have to put on in order to keep the *populace* in check. And remember this: the Iraq war isn't earning the US any brownie points with those *populations*.

"I have seen documentation of the fact that he had them, the links to al-qaeda, etc. etc."

Of *course* Hussein *had* (note the *past tense*) chemical weapons. The US (and others) sold the precursors to him intentionally, when he was fighting a proxy war with Iran. They were all used, destroyed or otherwise past their spoilage date before even the first Gulf War.

As for the "links to Al-Qaeda," one meeting that ended badly does not a link make. One thing I think we forget about Hussein is that he was ultimately a pragmatist, not an ideologue. I think he realized that these people would be after *him* next (being an Arab secularist and all), so it wouldn't be a good idea to back these guys over the long haul.

Re:This guy hates freedom

[pi radians]

He was given false information from the CIA, who apparently received false information from unreliable sources.

The CIA knew long before that "Curveball's" information wasn't trustworthy. It made up the majority of Powell's presentation to the UN anyways. The other major source, Ahmad Chalabi, was dealing directly with the White House (dude had big dreams of running Iraq), and ended up giving classified information to Iran. The CIA definitely took a good chunk of the blame for the intelligence failure, but further investigation would show they were little more than a scapegoat.

Sure, both the CIA and the WH thought that Iraq still had WMDs, but it was the Bush administration that said they had proof when they didn't. They were blatantly and intentionally deceiving their constituents.

Morse is an interesting case

[Infonaut]

I actually used this case in my advocacy class this semester. I had to argue for the school in a faux case that had some similarities to Morse. I also had to sift through the Supreme Court and 9th Circuit cases relating to school activities and free speech. The 9th Circuit (the West Coast) tends to take a liberal view of free speech, especially when compared to the 4th Circuit (Southeast), for example. The Supreme Court clearly articulated the notion in Tinker that students do not leave their 1st Amendment rights at the door when they enter school grounds. However, subsequent cases have been ruled such that vulgar, lewd speech may be limited, and controversial speech that might appear to be under the impimatur of the school may be limited as well. If the speech is disruptive of the educational mission, it may be curtailed by the school. However, clearly political speech, so long as it is not an attack on a specific group or class of individuals ("Latinos should burn in hell") is solidly protected.

The interesting thing about Morse as the article points out, is that this is really about speech related to illegal drugs. Should the school be allowed to curtail student speech any time it has to do with drugs? How attenuated can the connection between the student and the school be? Should students who are doing homework together in a public library have their speech restricted because onlookers might somethow think that the school is tacitly approving that speech? The Supreme Court will not be able to re-examine the facts in the case, only the holding of the case as it relates to the Constitution. So the arguments will be about how close the connection was between the school and the student during that activity, what the nature of the speech was, what the speech's effect on onlookers was, and whether the speech was inherently political. I wouldn't be surprised if the school's student behavior policies and the notice students receive about these policies comes under scrutiny as well.

Before you jump to the conclusion that the "conservative" Court is going to side with the school, remember that Scalia didn't have a problem with medical marijuana. This is a Court that is very wary of state action, and it is entirely possible that Morse will be decided in favor of the student, thereby cementing the exact result our good friend Mr. Starr would rather avoid.

Re:This guy hates freedom

[kpharmer]

> Remember how this started out - a sexual harassment lawsuit. I forget the details

You unfortunately then forgot about how the entire sexual harassment suit was funded and backed by an extreme far-right interest group. Not a group that historically has been concerned about women's rights (far from it), a group that sought to use any possible excuse to harass Clinton.

And sure, having sex with interns isn't good judgement, and everyone should be concerned with him about that. But frankly, I'm more concerned about one party disabling the government while creating a circus over a primarily private sexual relationship than I am about the president lying about who he has sex with. Lying about sex has no impact on the government, distracting the government and blowing millions of dollars to attack the president over a non-issue clearly does.

Re:This guy hates freedom

[sg_oneill]

Well, except the high level resignations in many intelligence agencys around the world where the guys came out saying "Look, the president is making this stuff up. We do NOT think they have MWD's but we are under orders to say otherwise".

Certainly the high level ASIO defectee in australia who resigned because he was sick of the US asking him to make shit up to justify the war.

There was *MASSIVE* corruption at the high end to get this to fly, and surprise surprise, it turns out he didnt have mwd's or nukes, and it turns out al-quaida had been waging a terror campaign against sadam husain, and it turns out intel experts warned the whole thing would just end up with iran gaining control over large sections of iraq and well...

the govt *knew* this shit, and now its all documented, but at the time, the cvilian neo-conservative crooks just ordered the military experts to shut the fuck up.

Re:Give thanks to Starr

[MillionthMonkey]

You do not have a right to bear arms in a high school. You do not have the right to congregate freely in school because you are expected to be in class and not blocking the halls. You are also not an adult when you are in school unless you are over 18 years of age.

And he wasn't in a high school, so all of this is irrelevant.

BONG HITS 4 JESUS isn't something that can be protected under the constitution because it isn't a political or ideolical belief.

Are you kidding? That's an extremely political thing to say.

Re:Give thanks to Starr

[schtum]

The relationship between Bill Clinton and Monica Lewinsky was consensual. She was sold out by Linda Tripp. Lewinsky also lied about the relationship under oath before she knew Tripp had been taping their conversations. So why wasn't Monica tried for perjury? Is it only a crime when your political enemies do it?

Re:This guy hates freedom

[xdroop]

Ah, but it's far more convoluted than that. This is something I ripped out of an online journal written by an (uninvolved) lawyer years and years ago which sums up the action:

I'd like you to imagine, if you will, the following scenario. You are being sued for sexual harassment. During a deposition, you are surprised to be asked a question about an unrelated affair. Your spouse doesn't know a thing about this affair, and you can't imagine what it has to do with the matter at hand.

So when you're asked, "Did you sleep with Susan Jones?" you freak out. You lie. You say no.

A week or so later, someone comes up with some pictures of you and Susan Jones in, shall we say, a compromising position. The pictures are forwarded to the District Attorney, who realizes that you have just lied under oath. He files perjury charges.

At your perjury trial, you are again asked if you ever slept with Ms. Jones. You are an idiot, so you say no.

In the meantime, an appellate judge in the (unrelated) sexual harassment civil suit has decided that the evidence regarding Ms. Jones is completely irrelevant to the question of whether you sexually harassed the other person, and tosses the evidence.

Ah-hah, you think to yourself. Perjury is lying under oath about a material fact. If your affair with Ms. Jones wasn't material, well, then, you didn't commit perjury, did you?

Well, says the district attorney, maybe not that first time around. But whether or not you slept with her was certainly material in your perjury trial, since the whole question there was whether or not you lied about it.

So now, even though the first perjury charge might be bullshit, you find yourself facing a second charge of perjury, this time for perjury committed during your first (bullshit) perjury trial.

And that, ladies and gentlemen, is how they just impeached our president. Not for lying during the Paula Jones lawsuit, but for lying about whether he lied in the Paula Jones lawsuit.

[/rimshot]

Re:This guy hates freedom

[Anonymous Coward]

but he didn't lie about Hussein having weapons of mass destruction.

Yes he did. Like any intelligence the report was nuanced with many possiblities and probabilities. Even at the time that Bush was making his case for abandoning Afhganistan and invading Iraq it was well known (outside the US at least) that Saddam did not present a clear and present danger to the US. It was also well known that Bush and his people were deliberately shading, re-interpreting and outright ignoring any data that suggested that Saddam did not have WMDs. Bush's team knew that any responsible report would mention the possibility that Iraq had WMDs (after all, the same people had supplied them in past) and chose to disregard all other data.

Cheney (Aug 2002) "Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction. There is no doubt that he is amassing them to use against our friends, against our allies, and against us."

Donald Rumsfeld (Sep 2002): "[Saddam] has amassed large clandestine stocks of biological weapons... including anthrax and botulism toxin and possibly smallpox. His regime has amassed large clandestine stockpiles of chemical weapons, including VX and sarin and mustard gas... [he] has at this moment stockpiles of chemical and biological weapons."

George Bush (at least ten occasions between Oct 31 and Nov 3, 2002) "We know he's got chemical weapons."

Ari Fleischer (9 Jan 2003) "We know for a fact there are weapons there"

What is particularly interesting is that, after presenting such a strong case (including an extensive presentation to the UN showing exactly where all these weapons were) and the attack was launched, they suddenly turned mealymouthed:

Fleischer (21 Mar 2003) "Well, there is no question that we have evidence and information that Iraq has weapons of mass destruction, biological and chemical particularly."

Rumsfeld (22 Mar 2003) "We have seen intelligence over many months that they have chemical and biological weapons"

More at http://www.rotten.com/library/history/war/wmd/sadd am/ [rotten.com]