Category Archives: Free Speech

Protecting a student’s right to make anti-gay statements

Following up my previous posts on free speech, we have a case involving the ACLU and a student’s right to wear a T-shirt with an anti-gay message.

Anti-rainbow

The front of Seth Groody’s T-shirt.

Wolcott High School in Connecticut designated April 20th a Day of Silence in order to raise awareness of anti-LGBT bullying and harassment. On that same day, junior Seth Groody wore to school a T-shirt depicting a rainbow with a slash through it – an anti-gay statement. School officials forced him to remove the T-shirt.

The ACLU has pointed out that this is unconstitutional, and they’ve asked school officials to guarantee that students’ rights to free speech are not infringed in the future.

“The First Amendment was written to protect unpopular speech, which is naturally the kind of speech that will always need protection,” said Sandra Staub, legal director of the ACLU of Connecticut. “The ACLU has fought hard for same-sex marriage and we couldn’t agree with Seth less on that issue, but he is absolutely correct about his right to express his opinion.

“The impulse to suppress ideas that we find unpleasant is antithetical to freedom and democracy. That’s why the ACLU of Ohio stood up in 2006 for the rights of students to wear T-shirts supporting same-sex marriage and the ACLU of Connecticut must stand up in 2012 for the rights of students to express the opposite sentiment.”

This is the right thing to do. I, too, am vehemently against anti-gay sentiment, but if people are to be free to express good ideas, then they must also be free to express bad.

The only exception I would make is the exception that US case law already makes – if speech becomes so frequent or disruptive that it infringes on the rights of others, then it becomes harassment, and it is no longer protected under the First Amendment. If a great number of students at Wolcott High came to school wearing anti-gay shirts, that would arguably create an oppressive atmosphere towards LGBT students, with negative consequences for their psychological wellbeing. Anti-gay bullying is a big issue in American schools these days, and it isn’t to be taken lightly. However, if only a handful of students are openly expressing anti-gay sentiments, then the answer is for students and teachers who disagree to raise their voices higherand to repudiate the idea that there is something wrong with being attracted to members of the same sex.

(via the Friendly Atheist)

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Why harassment isn’t free speech

One of the limitations on free speech in American public schools is when speech becomes harassment. What constitutes harassment, and why is it a good idea to put limits on this sort of behavior?

Here is an interesting example from a high school in Nova Scotia. Granted, Canadian law isn’t American law, but it’s the case that I care about. A student named William Swinimer was suspended for wearing a t-shirt to school with the slogan, “Life Is Wasted Without Jesus.” Now this, alone, would not be an actionable offense in the US or in Canada. In a previous post on student speech, I discussed students’ rights to express all sorts of potentially offensive ideas via their dress (one student wore a Jesus costume to his school’s “Fictional Character Day”). Swinimer, however, had been repeatedly preaching his religion and telling other students that they would go to hell. He was, it seems from the report, disrupting the school learning environment and making it more difficult for other students to learn. As a result, he was ordered to stop wearing the offending t-shirt (which he had worn every day for several weeks). When he continued to wear the shirt, Swinimer was suspended for five days.

Is this the right approach? It seems to me that the distinction between speech that should be protected in schools (including speech that is unpopular or offensive), and behavior such as the above, is a valid one to make. The Washington chapter of the ACLU has an article explaining why behavior such as Swinimer’s constitutes “harassment,” and why it should be restricted:

Students do not abandon their rights to freedom of speech at the classroom door. A school should allow students to speak freely so long as their speech does not substantially interfere with the educational process or the rights of other students. However, certain conduct may be prohibited in a school setting even where it could not be punished in other settings.

For example, it does not violate freedom of speech when teachers require that students stop extraneous conversations and pay attention in class; this form of student speech interferes with the educational process. In the same way, harassment of students by other students interferes with the operation of the school and infringes on the rights of the harassed students to enjoy equal treatment under law and equal educational opportunity. Schools have a compelling interest in eliminating discrimination and harassment, and this goal may be pursued in a manner that does not abridge the right to freedom of expression.

In a previous post (linked above), I discussed why free speech, and therefore the free exchange of ideas, is important. It makes our society better to be able to say what we think, and respond to ideas that we find false or pernicious. Censorship does not solve problems. Harassing individuals, however, and interfering with their ability to learn is a problem, and should rightly be prohibited. In certain cases where harassment or bullying of a group is particularly prevalent or severe, we have an even greater responsibility to see that those students are protected, lest something terrible happen. This is why it was disgusting last November to see Michigan Republicans attempt to pass a law to let school bullies off the hook if they acted out of a “sincerely held religious belief or moral conviction.” Against a national backdrop of anti-gay bullying and teen suicide, Republicans wanted christians to have free license to disparage students for being gay.

So to return to the current issue, while I defend William Swinimer’s right to express offensive beliefs in school, I think it’s good to draw the line at pestering other students and disrupting the learning environment.

(via Butterflies and Wheels)

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Some good advice

For my final post on free speech this week, I thought I’d share the transcript of a 2008 commencement speech given by Singaporean author and lawyer, Adrian Tan. The speech is good (and not overly long), but what stands out for me is Tan’s advice to “be hated.”

…every great figure who has contributed to the human race has been hated, not just by one person, but often by a great many. That hatred is so strong it has caused those great figures to be shunned, abused, murdered and in one famous instance, nailed to a cross.

One does not have to be evil to be hated. In fact, it’s often the case that one is hated precisely because one is trying to do right by one’s own convictions. It is far too easy to be liked, one merely has to be accommodating and hold no strong convictions. Then one will gravitate towards the centre and settle into the average. That cannot be your role. There are a great many bad people in the world, and if you are not offending them, you must be bad yourself. Popularity is a sure sign that you are doing something wrong.

So true! And it’s rarely said. Few people take kindly to being told they’re wrong, or that they have to change. Say what you believe, and don’t let offense be an excuse to stop talking.

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Kenan Malik on banning hate speech

I might as well declare this “Free Speech Week” here on my blog. I’ve posted twice on the subject already this week, and today’s post will mark my third. I’m glad, for the following is something I’ve been meaning to share.

Writer and blogger Kenan Malik recently posted the text of an interview he gave on the subject of hate speech. He’s titled the post, Why hate speech should not be banned.

As I wrote yesterday, free speech is a difficult issue, and I find myself frequently in need of a reminder as to why disparagement of persons based on their immutable characteristics – in other words, hate speech – should be protected. Malik gives clear, well-thought out answers to this question and many related ones. Normally I would offer some highlights, but really the entire interview is engaging and informative, and well worth one’s time. Do give it a look.

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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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This school could have taught a real lesson

Thanks to a post over at the Friendly Atheist, we have information on an interesting incident that occurred several months ago at a high school in Tennessee. The school held a “Fictional Character Day” in which students could come to school dressed as a fictional character (can you guess where this is going?) One student came dressed as Jesus. Bam! There was anarchy the halls, babies crying, and cats and dogs taking up residence together.

Ok, not really. What happened was the student, Jeff Shott, was summoned to the principal’s office to have a conversation with three administrators at once about the “appropriateness” of his costume. Shott was told that his costume was controversial and likely to disrupt the learning environment. To be fair, the school administrators didn’t immediately force Shott to take off the costume. However, they did warn him that if even one teacher reported the slightest disruption, Shott would have to take it off. After being given this warning, Shott decided simply to remove the costume then and there (his writeup of the whole incident is available at the Friendly Atheist, linked above).

Jeff Shott as Jesus

I’m going to present two sides to this, starting with the side I probably would have taken when was in high school. I was a christian then, and I probably would have sided with the people who thought (as some people at Shott’s high school must have) that dressing up as Jesus and asserting his fictionality was a rude and disrespectful thing to do, and possibly shouldn’t be allowed. There is a feeling in American culture, and I’m sure others as well, that there is something “off limits” about religious beliefs. Criticize someone’s politics, or their scientific findings, or their beliefs about how to run a company, but as soon as a person’s beliefs become attached to a god somehow, they are then felt to be off limits, beyond criticism – as if a statement couldn’t be false just because it has the word “god” in it. It’s not a rational thing to think, but I’ve been there, I’ve felt it, and it’s real. When I look at the picture of Jeff Shott standing in his school cafeteria dressed up as a “fictional” Jesus, my mind goes back to the belief system I held when I was in high school, and my gut reaction is something like “Hold it – you can’t do that.”

But I see things differently now. It’s silly to object to, or be upset by (enough to cause a classroom disturbance) someone asserting the fictionality of Jesus. The supernatural Jesus is, after all, certainly fictional, and even the historical Jesus (in the form of an apocalyptic Jewish preacher around whom the Biblical myths coalesced) may be just a legend as well. But even if this weren’t the case, why should it be upsetting that a random student at a person’s high school was wrong? When a person honestly believes something that is patently false, there is little reason to pursue an argument with them, or to care very much about what they have to say. So why shouldn’t christian students at Shott’s high school simply ignore Shott, since he obviously doesn’t know what he’s talking about? This is what anyone would do if a student came to Fictional Character Day dressed as Abraham Lincoln. No, clearly the idea that Jesus existed is one most christians find needs defending. I wonder why.

The school administrators’ response to this event is something I find more probematic. Apparently the administrators thought that if the sight of a student dressed as Jesus incited a classroom disruption, the solution would be to make that student remove the costume, rather than punishing the students who caused the disruption. It seems to me that the administrators wasted a teachable moment, and planned on holding  Jeff Shott – who was following the rules – responsible for the actions of disruptive students who weren’t.

Instead, this would have been an excellent opportunity for the adults at school to teach the young adults that people have a right to their beliefs, and people have a right to disagree with those beliefs, and they must do it civilly. They must follow the rules of the school or the society at large that they are subject to. Offense is not free pass to behave however you like, or to silence someone with an opinion you don’t like. A braver school administration might have taken the opportunity to teach this, and it would have been far more pedagogically effective than any abstract discussion of free speech like the kind that are had in history class. This is real.

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The way we respond to Rush Limbaugh

There’s a new anti-Limbaugh petition, calling for advertisers who temporalily dropped their ads from Rush Limbaugh’s show to make that drop permanent. I haven’t signed it.

At what point does activism become bullying? That the question I’m pondering. This started when Limbaugh made some asshole misogynistic comments on his show – standard behavior for him. It was terrible and lots of people spoke out about it. They called on Republicans to repudiate the remarks. They signed petitions to that effect. This was all well and good.

Then they called for Limbaugh’s advertisers to pull out of his show. Many did. But already I found this to be a bit of a stretch – as if we were holding the advertisers morally responsible for Limbaugh’s words. Limbaugh is the one who’s being a terrible person; the advertisers are just marketing their products to their target demographic.

Admittedly, I begin to see the point of moralizing the advertising when I consider that advertising brings money, and thus support, to Limbaugh’s show. So perhaps the advertisers should feel bad about this. Perhaps they should want to withdraw their support.

But here’s the thing – what if they don’t? It seems to me you can only go so far in telling someone (or a group of people) that they “should feel bad” about something. You can only go so far when it comes to dictating someone else’s conscience for them. The purpose of these petitions is essentially to shame the advertisers into leaving the show. Is that really the right answer? I’m not convinced.

And there’s one more issue at stake here. I get the feeling from the tone of discourse about Limbaugh that a lot of people would be happy to see his show go off the air. I would, too – but only if that was because people stopped listening to it. I don’t want to see the show forced off the air. Limbaugh has a right to say appalling things, and we have a right to declaim him for it. But silencing someone is bullying. To force a show off the air is to act as if we have something to fear from words, and bad ideas, and insults. We don’t. Every time someone says something that is wrong, that provides us with an excellent opportunity to say what is right. To quote Johann Hari in his excellent piece on free speech:

The solution to the problems of free speech – that sometimes people will say terrible things – is always and irreducibly more free speech. If you don’t like what a person says, argue back. Make a better case. Persuade people. The best way to discredit a bad argument is to let people hear it.

So I say, let Limbaugh keep talking. He isn’t a threat – he just helps us make our case.

I’d love to hear others’ thoughts on this.

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