Yes, you can still be offensive in school (and why this is a good thing)

Free speech is a difficult issue. I’ve read the arguments in favor numerous times, but despite this fact I find that I must frequently remind myself why a hateful or ignorant opinion must be allowed free expression. Two days ago, I discussed the free speech rights of a high school student who wore a Jesus costume to school, and some commenters (mostly on Facebook, rather than here) disagreed with my opinion. It is because free speech is such a difficult issue that I find these objections well worth getting into. In this post, I take a look at fairness in censorship, hate speech, and the difference between freedom of expression inside and outside public school.

First, a recap: On Monday I posted about an incident at a high school in Tennessee. The school held a Fictional Character Day, in which students could come to school dressed as their favorite fictional characters. One student, Jeff Shott, dressed as Jesus. He was warned by the school administrators that if his costume caused a class disruption of any kind, he would be forced to remove the costume. So Shott decided to take the costume off right then and there.

I argued that it was silly for (students who were presumably) christians to get upset by someone asserting that the (supernatural) Jesus is fictional. After all, this is what practically every jew, muslim, hindu, buddhist, atheist, and agnostic in the school believes. More importantly, I argued that the school was wrong to punish Shott for class disruption caused by other students. Shott was following the rules. The idea that a student could be so upset over the assertion that their religion is untrue that they would cause a classroom disturbance, and that a school administrator could put the responsibility for such immaturity on Jeff Shott, and punish him for asserting an unpopular opinion, is outrageous. This sort of issue is exactly what free speech is about.

Note, first, the thread of minority oppression in this incident. According to Shott’s retelling, when Shott was called to the principal (Dr. Farmer)’s office to discuss his costume, he was asked to state who he was portraying. After he answered, “Jesus Christ,” Farmer said he had been hoping the answer would be Zeus, or some other mythological deity. Now I do not know if the words “mythological deity” were Shott’s or Farmer’s, but the mention of Zeus makes the intent clear. It is perfectly alright to dress up as fictional characters from unpopular religions, but you’d best leave christianity alone. The tenets of christianity have a privilege that other beliefs do not have.

And thus we get into the reason why protecting free speech is so important – there is a tendency to marginalize opinions that we disagree with, that are controversial, or that we find offensive. This is what we must watch out for, because human logic is fallible, popularity is a fickle thing, and offense is in the eye of the beholder. How long will it be before someone declares your ideas offensive, and therefore off the table? There is no protection against this other than the protection of free speech.

One of the comments I received on Monday (again, this was on Facebook, not here), was that a student wearing a fictional Jesus costume is actually persecuting christians! My, this is setting the bar for persecution rather low. If telling someone that they are wrong amounts to persecution, then I daresay my friend was persecuting me when he disagreed with my blog post. And who cares if he was? Who cares if he was telling me I’m wrong? I have never found it to be such a terrible thing. Unpleasant, certainly, but far more pleasant than an unfree exchange of ideas.

Furthermore, this suggestion demonstrates an obliviousness to the privilege that christians in America enjoy. On the subject of articles of dress that assert certain beliefs, my friend called out Jeff Shott for his assertion (via costume) that christians are wrong, but failed to say anything about the crosses that christians often wear, which assert that atheists such as myself, as well as jews, muslims, hindus – basically anyone who isn’t christian – are wrong. As a matter of fact, I find many of the basic tenets of christianity (which are, again, asserted by the wearing of the cross) to be immoral and downright offensive, so may I silence christians from voicing their opinions, as well? This is an obvious double standard.

Commenters also provided me with further examples to consider. What if a student had come to school wearing Nazi or Ku Klux Klan gear, or a T-shirt with an anti-minority group slogan? What if a student had worn a Hitler costume to Fictional Character Day, and this greatly upset someone whose family had been affected by the Holocaust? Would it be right to make such a student remove his or her costume?

These are important questions to ask, and I will get to them in a moment. First, let us notice a few things. Do you see any important differences between the assertion that “Jesus didn’t exist,” and the assertion that “You are an inferior human being,” which is the sort of thing that hate groups like the neo-Nazis and the KKK often assert? The former statement attacks an idea; the latter attacks a person. Furthermore, if a person is attacked for their race, gender, sexual orientation, and so on, that is something they cannot change. Beliefs can change – and should! – based on evaluation of evidence, but if someone despises you for who you are, there’s nothing you can do about it.

So we are getting into the category of tougher examples as far as free speech is concerned. This is no longer the mere (and yes, I say “mere!”) assertion that a popular religion is wrong. This is hate speech. Hate speech is, aside from a few exceptions, protected by the First Amendment. But the question for this blog post is, how far does that protection extend into public schools? How far should it extend?

The examples above that my friends provided were thought-provoking, and it wasn’t obvious to me what the answer should be. Like I said, free speech is a difficult issue. So I did some research. It turns out that public school students (and teachers) have all of their First Amendment rights more or less intact!

The seminal court case on this issue was Tinker v. Des Moines Independent Community School District (1969). The Tinkers were Iowa public school students (siblings), who decided to wear black arm bands to school to protest the Vietnam war. Their respective schools banned the arm bands, and punished students who continued to wear them. The Court ruled that such a violation of free speech was unconstitutional, so long as the speech would not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” This became known as the “Tinker test” (which I will comment more on in a moment). There are a few other limitations on students’ speech, with regard to defamation, obscene speech, “true threats,” and harassment. These restrictions are well-explained in this PDF from the  ACLU of Washington State. Suffice to say, offending someone for any reason is not enough to constitute harassment.

Since Tinker v. Des Moines, numerous decisions have upheld the right of students to wear controversial and “offensive” (I put this in quotes because it is subjective) clothing to school (see this PDF from American University Law Review for a summary). One such case involved the donning of a T-shirt with the slogan, “Homosexuality is a sin! Islam is a lie! Abortion is murder! Some issues are just black and white!” Let me stress that this sort of speech is protected by the First Amendment, even in public schools.

Is this a good thing for our society? I think so. As I said above, by protecting all speech we ensure that someone else’s subjective evaluation of our words will not be used to silence us. The ACLU echoes this point, as well as several others. To paraphrase, the free exchange of ideas is paramount in a free society. Limiting free speech for the purpose of combating bias (say, against racial minorities) traditionally does not work – it merely suppresses the symptom – hateful speech – without addressing or exposing the underlying bigotry. The best response to speech you don’t like is more speech.

It might be argued that this is all well and good when it comes to society at large, but should it apply to our children attending school? Shouldn’t they be, you know, protected from hate? Again, I see more good in protecting free speech. First of all, it is impossible to be objective about what speech is “bad.” People will always label speech that threatens their views as “wrong” or “offensive,” regardless of whether there is any truth to that claim. More importantly, children should be full participants in the democratic free exchange of ideas – we can’t expect them to handle ideas they find odious with maturity or sensibility if we do not teach them this skill. The Supreme Court over the years has spoken strongly in favor of this principle [emphasis mine]:

“The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress “expressions of feelings with which they do not wish to contend.”

My last argument for the protection of speech, both inside and outside of school, is that offensive, idiotic, or just plain wrong expressions of opinion should not get us down. We are bigger than bad ideas! It doesn’t matter if I tell you that Jesus is fiction, or if you tell me that I’m going to hell because I am an atheist. These opinions may upset us, but it is more upsetting when we cannot voice our opinions at all. These are the lessons that Shott’s high school could have taught!

The only major point on which I disagree with the US courts is regarding the Tinker test. As I said two days ago, we cannot allow other students’ actions to dictate whether free expression is protected or not. There is nothing fair or right about protecting an opinion one day because no one caused a disruption over it, and censoring an opinion the next day because someone did. I agree that a certain degree of order, and more importantly, safety, must be maintained, but we must be careful not to allow loud and unruly persons to take away our basic freedoms. It may be the case that Jeff Shott’s costume, had he continued wearing it, would not have offended sensibilities enough to cause any kind of classroom disturbance. However, on that day or any other, there would be nothing to stop interested parties from causing a disturbance on purpose in order to silence Shott (or anyone else they disagreed with.) It does not protect free speech to put the power of censorship in the hands of those who would be most tempted to use it.

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Filed under First Amendment, Free Speech, Freethought, Government, Human Rights

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