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Symbolic Speech and the First Amendment

There has been a lot of moral and political uproar in my network over the Live Oak High School incident on Wednesday. While I chose to engage a few comment threads on the subject, I made an effort to argue only on the constitutionality of the school official’s decision to censor a few student’s symbolic speech.

I came up with some legal references to help clarify the motivations of the school authority. In U.S. courts, in loco parentis is a doctrine derived from English common law which in part deals with how schools function in the place of a student’s legal parents. To put it another way, the school authority takes on some of the traditional parental role, to act in the student’s interest while preserving their civil liberties.

But in loco parentis allows officials to play quite the tyrant towards students, particularly when order and discipline are substantially threatened. The Supreme Court has upheld invasive searches of lockers and personal property in New Jersey v. T.L.O and the suppression of some vocal, printed, and symbolic speech while acting “in the place of a parent” (Bethel v. Fraser, Hazelwood v. Kuhlmeier, and Tinker v. Des Moines respectively).

It is important to note – the Supreme Court has repeatedly made clear that the constitutional rights of students, while in school or at school-hosted functions, are not automatically coexistent with the rights acknowledged for adults and juveniles in other settings. If that seems severe and draconian to you, I think you’re right.

However, a child would see parenthood at times to be nothing short of utter tyranny. When school authority tries to censure, it certainly impinges on the student’s preferences, but it is not always a constitutional violation. Under specific circumstances described in Tinker v. Des Moines, even silent symbolic speech is not protected by the First Amendment.

If you heard news that a good many students were sufficiently upset by the patriotic symbols to ditch school and directly petition City Hall, then you’d see the official’s situational assessment of “incendiary speech” was evidently accurate. Patriotism is emphatically not under attack at Live Oak, but the official likely sought to temporarily suppress the speech of a few students to halt a major disturbance, either present or imminent, in an environment where education trumps political discourse.

Americans seem to cherish speech protections more than anything else enshrined in the U.S. Constitution, and I’ve recently heard a lot of ardent opinions about censorship. I’m not interested in attacking anyone’s nationalistic sentiment; Personal values are the culmination of the individual life experience, and I simply can’t argue validity one way or the other. I offer only one criticism, but I need to first give a brief explanation:

My decision to research and focus my comments on constitutionality was largely guided by the many declarations of national pride and patriotism posted to one particular thread before I even opened the text window to respond. I wanted to bring a fresh perspective because there had been no mention of the Supreme Court rulings I cited earlier. In fact, there had been little else but opinions based on value judgements and the hearsay of the initial media coverage.

My criticism is for the people who call for lawsuits and administrative dismissal and seem to be entirely ignorant of the extensive jurisprudence over protected speech. I’m beginning to suspect that many people have the erroneous understanding that they can pull a copy of the Constitution out of their desk drawer and glean all there is to know about First Amendment rights.

I say to them directly: Patriotism constitutes more than passion.

I am aware that some of you have endured extraordinary sacrifice for the sake of our country’s security and way of life. Your selfless contribution is not in question, but I am not alone in the belief that the enfranchised are obligated to have at least a rudimentary command of how judicial doctrine relates to our civil liberties.

In the present era, it is easier than ever to access the resources necessary to inform yourself on the half-century of judicial review governing this particular incident at Live Oak. You can start with the hyperlinks I posted earlier in this note. Also, Stanley Fish recently wrote a good primer on the history of First Amendment theory and how it pertains to the controversial ruling on United States v. Stevens last month.

I look forward to engaging you all again as appreciably more empowered citizens.

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