ANOTHER TRAGIC SYMPTOM OF TYRANNY IN THE MODERN TIME
Once united behind the noble cause of republicanism, of individual rights and duties, and a government that could be governed by the written and ratified document which formalized it’s creation (namely, the Constitutions), it now is ever more clear that the people have succumbed to the wiles of mobs, tyrants, and fools; and as a result of their losing sight of those noble principles clearly outlined in the fundamental founding document, The Declaration of Independence, the slide towards tyranny, in all it’s various forms, becomes more and more clear.
Just when you thought that there could hardly be better evidence of Constitutional apostasy amongst the united States, there is yet more bad news for those who care about the Fundamental Rights of which it is government’s sole purpose to aid in securing.
Not only is there a plunder-funded “free” public school system all across the nations (which topic is not going to be directly addressed in this post) but now those systems are not even being respectful of the rights that every true student should learn about and understand. This time it involves a court ruling which, although bad enough in practice, is almost simultaneously a symbolic symptom of digression, perhaps even an emotional metaphor, of what this system of countries has been allowed to become by the people.
In fact, in a case of sick irony, this court ruling involves a ban on the very image that, for many, is or used to be a symbol of the very freedom of expression that is now being blatantly hindered and sustained: The American Flag. Perhaps, in that ironic sense it is, at least, an honest expression from a court system that is, more and more, being run by people who find every excuse possible to get around and ignore the very document they are supposed to be interpreting and upholding.
In this sense, this case was summed up well by Jonathan Turley who recently stated in a column in USA Today: “Ironically, the flag is the very symbol of a nation of differing faiths, cultures and races bound by liberty. Perhaps the school was right: If you are going to deny free speech, it is the last thing you want to see.” (underline added)
THE CASE ITSELF – A CALIFORNIA PUBLIC SCHOOL’S BOGUS USE OF THE PRINCIPLE OF PRIOR RESTRAINT
This case involves an administrative ban in a so-called “public” “school” – Live Oaks High School in California. The ban was on a student’s ability to wear t-shirts with American Flags depicted on them during the Mexican celebration Cinco de Mayo, which is on May 5.
On February 27th of this year, 2014, the three-judge panel Federal Ninth Circuit Court of Appeals, in Dariano v. Morgan Hill Unified Sch. Dist. (2014 U.S. App. LEXIS 3790), unanimously affirmed the lower District court ruling which had originally sustained the school’s bogus policy decision to ban the image from the attire of students on that day.
This ruling, unfortunately, implies that constitutionally protected rights are mere privileges to be allowed at “the state’s” discretion, and that flags and other images are able to be banned as if it is some kind of “hate speech”. Banned as if the activity involving them necessarily harmed someone else. The excuse for so banning was merely due to the potential “harm” that the symbol could be perceived by some school officials as being a contributing factor in facilitating.
In other words, although fundamental rights are a part of one’s humanity, those rights can apparently be secondary in regards to school policy, regardless of many explicitly written constitutional protections which should be limiting the use of that policy.
Although the concept behind even the superficial argument in support of such a vast school system, broadly speaking the exercising of human potential for knowledge and progress; apparently that very humanity, with the rights that naturally come with it, were not worth close consideration in this school’s policy decision, or the Ninth Circuit’s judgement thereon.
This school’s policy on this issue involved the implementation of a principle that is often more specifically referred to in other areas of speech/expression cases; the principle is often known as prior restraint. The idea behind the term prior restraint is one of “censorship” or suppression of speech/expression before the expression actually takes place, or is allowed to take place.
The implementation, or the use of this type of pressure, necessarily involves a hindering of freedom. Thus, it’s legitimate use, if you will, should be limited to activities such as murder or robbery, which necessarily harms another person; the corollary being that it should not be allowed in cases involving private persons and activity or expression that does not necessarily harm another individual. There are other areas of law that deal with reparations for harm done by any activity, whether or not that harm was intended or not, and even whether or not there was a contract related to the incident.
CONSTITUTIONAL CLARITY BEFORE COURT MISINTERPRETED NONSENSE – DIFFERENCE BETWEEN PUNISHING HARM AND PREEMPTING SPEECH
The First Amendment provision that was pertinent in the case states that: “Congress shall make no law…abridging the freedom of speech.” Notice the use of the word “the” in this provision. This right was not one that was “created” or “given” by the Constitution, nor “granted” by the Congress. This right, the freedom of speech, was prior to and superior to any earthly government, and should be respected as such.
In fact, the proper role of government is limited to helping to protect those very rights which preceded it’s institution in the first place. Also notice that this clause is a universal negative proposition. If, bringing the principle out for a broad analysis, the government shall make “NO” law abridging the freedom of speech, is there any latitude given for so-called “reasonable” exceptions based on practicalities. If they shall make NO law abridging the freedom of speech, it would be patently illogical to then state that “the government” then has the authority to make SOME law that restrains it.
This point stands even when it is clearly understood that every right has a corresponding duty. Every right has bounds around the equal rights of other people. So, in relation to this clause, it is not that there is never a time in which speech may be punished – because if there is indeed harm, i.e. libel or slander, then it is justifiable – but it is illustrating the fact that the government may not ever broadly preempt “freedom of speech” merely because they can, via the power of legislation. Not having the authority to “abridge” freedom of speech is different than being able to punish speech that palpably harms another individual.
Article 1, Section 2 (A) of the California Constitution, which honestly should be much more relevant in a case between Californians and a California State Institution, states: “A law may not restrain or abridge liberty of speech…“. [See Note Two] The same analysis stated above would apply to this constitutional provision.
The Cinco de Mayo ruling by the 9th Circuit Court justifies and promotes a policy which preempts a form of freedom man is entitled to exercise by right, which right the Constitutions sought to protect from the governmental entity that should be governed itself by its’ provisions. This preemption is justified by the alleged danger of “what could possibly be” instead of the more logical position of the use of punishment for harm that is actually done – or punishment based on truly harmful conduct.
If the basic principle behind this infringement, or this prior restraint, were true and valid, parents should probably be punishing their children, not for what they have done that is wrong, but based on what they could do that is wrong. Or, even more precisely, not punishing them for what was done, but punishing them for what they possibly could do in the future.
If you don’t mind a little cynicism, I hope you enjoy the next point…
Are you or I, as an individual, let alone the entirety of the electing people of a nation, so infallible as to be able to elect public officials omniscient enough to know precisely when a person, or persons, are going to do anything, let alone something criminal? Which criminal end these public officials are then able to so wisely analyze so as to determine the exact variable that made the difference between that action being taken or not, and thus, are able to then strategically use a magically “justified” form of preemptive “coercion” enough to prevent tragedy…All in a way not heard of since the tales of Mt. Olympus?
[Of course, as a side thought, would not even the occasional misuse of this “power” be tragedy enough to avoid endorsing it’s use?]
Even the begging of the use of the word “possible” in relation to the previous paragraph silently screams to the intellectually honest a distinct and very clear identification of irrationality.
Supposedly, in the minds of many, the fairy tales of youth have not changed in quality in their transition to adulthood. Only the mere names of fictional characters have changed to names of politicians and bureaucrats, who exercise a supposed “ability” not found in the real world.
Who needs the principle behind the phrase “innocent until proven guilty” when the people are able to elect supposed magicians who, although hardly ever are even able to balance simple budgets effectively, are able to completely understand and penetrate the future with their amazing understanding of the human condition.
Some speak of dogma. Many apparently live it and, at least, allow it to shape their worldview.
So this time it is the American Flag that is the symbol disallowed. But what about the next time such an issue comes up? What will, or more clearly, what could be next on the arbitrary ban list?
For those who say that it was justified by virtue of the fact that this policy was only used this once, under very limited circumstances – Is there a rule of nature that states that this type of policy, and this type of ruling, will be limited to this one ruling? Obviously, given the court’s reliance on what seem like prima facie equally tenuous rulings, that would not seem to be the case.
SOME FACTS ABOUT THE CASE ITSELF – OBVIOUS UNEQUAL TREATMENT
The specific incident which had a major part in leading to this court case goes back to May 5, or Cinco de Mayo, in 2010 when the policy was first implemented. This policy, enforced ostensibly to prevent inter-racial violence amongst the students on that day, was felt by the flag-tee shirt wearing students through a confrontation with the Assistant Principal. The students were ordered to change their shirt, turn their shirts inside out, or to go home.
As is often the excuse with the limitation on freedom, it was justified by the “expediency” of the moment – as if, even in the Ninth Circuit’s judgement, the state would allow such an excuse had this been conduct that they considered “criminal”, or even had been similar private conduct enforced by a mob or gang at a public park. (Of course, I repeat myself)
The school, in giving the context of the policy in their view, used the real example of an altercation that had occurred on Cinco de Mayo the previous year between students wearing Mexican flags, and students wearing American flags. Thus, the school felt justified in enforcing this policy for the supposed good of the school, and the safety of the student body.
Yet, to add insult to injury, the same treatment of “flag-bearers” was not extended to those wearing the Mexican flag on that particular day. So students in America were punished for wearing an American Flag; while students celebrating in their own way, wearing the flag of a foreign nation were left without similar treatment. This, as is hopefully obvious, threw out any possibility of even being perceived as somewhat “fair” or “equal” treatment when it came to what was perceived by the school officials as “offensive” speech worthy of curtailment.
Yet, although probably most of you who just read that previous paragraph naturally reacted with a sense of the injustice, this point was “exploited”, if you will, in the ruling itself. The Ninth Circuit used the fact that the students in the lawsuit who challenged this policy failed to show evidence that those wearing Mexican Flags could have been perceived with the same sense of worry as themselves, the court disregarded the argument put forth by the students – instead using that point as evidence in interpretation of the school officials acting “reasonably” in response to the fear of violent altercations between some of the students.
SCHOOL POLICY: A BAD EXAMPLE FOR CONFLICT RESOLUTION
Yet, even if the policy was “justified” in any sense of the word, what kind of an example does this policy set, and what lesson does it really teach the students of that school? Instead of punishing violent conduct, they preempt and restrict the student body’s rights to free speech. In fact, in response to justifiably punishable conduct, the school apparently blames the right, and caters to the wrong. Once again, what kind of example does this type of policy set for the students of the coming generations?
And yet, even with all the constitutional arguments aside, the policy is still invalid on its very face. In the words of legal analyst Johnathan Turley, the policy of “[r]emoving any display of the flag in the face of violence is akin to removing gay students to avoid harassment or girls to avoid sexual assaults.” This is essentially giving a de facto blessing to those who would aggressively threaten others – all at the expense of what should be considered lawful behavior. To put it even more simply, it is catering to the “wrong” at the expense of the “right”.
In the words of Eugene Volokh, a UCLA law professor who wrote in an article in the Washington Post on this topic, “the school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?” (underline added)
IRONIC USE OF TINKER – UNFORTUNATE CASE LAW LOOPHOLE EXPLOITED
One of the leading cases on this issue of free speech at public schools, Tinker v. Des Moines Independent Community School District, was decided in 1969. Ironically, although this case did indeed have the positive effect of protecting student’s rights to even wear unpopular material protesting the Vietnam War against the wishes of school officials; the standard and set of rules outlined therein, unfortunately, was the very analysis used by the Ninth Circuit in now turning against students’ abilities to express themselves via attire at school.
According to Eugene Volokh, Tinker maybe did not go far enough. He stated that “[t]his is a classic ‘heckler’s veto’ — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence…‘Heckler’s vetoes’ are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech…But under Tinker‘s ‘forecast substantial disruption’ test, such a heckler’s veto is indeed allowed.”
Not only was the “ban” of the wearing of shirts with American flags on them for particular students justified using Tinker in this case, but so was the selective enforcement as far as the application of the policy against solely American Flags as well.
The court even stated that “Schools may, under Tinker, ban certain images, for example images of the Confederate flag on clothing, even though such bans might constitute viewpoint discrimination.” (pg. 13, see ruling) So sure, perhaps in the case law, using the rules outlined therein, such a policy may be “allowed”…but should it? Why not interpret the Constitution the way it was plainly worded, to say nothing of the concept behind it?
In addition to that, we should never forget the difference between an entity being able to do something, in contrast to having the right to do something. There is a very real difference between authority and power.
IRONIC TIMING OF RULING
This case is even more ironic in timing given the recent indirect affirmation by the Supreme Court on March 10th in the “I [heart] Boobies” Case. As a consequence of the Supreme Court’s denial to hear the school district’s appeal in this case, the Appeals court ruling will stand. (Easton Area School District v. B.H., U.S. Supreme Court, 13-672) In this case, the 3rd Circuit Court of Appeals ruled in favor of public school student’s rights of free speech, as protected by the Constitution, to wear attire with the phrase “I [heart] boobies” on it.
Now, I realize that the ruling in the Cinco de Mayo case was based on the “reasonable” expectation of violent conduct coming as a result of the shirts being worn, whereas the “I [heart] boobies” case was based more on what school officials found “offensive” as far as the expression itself was concerned. One was centered on the “potential” effects, while the other was based on the distaste of the expression itself.
There are big differences between the emphases in these cases that deserve their own attention and analysis. Yet, the irony, in terms of a more broad outlook on current First Amendment-type cases, is still noted.
SIDE WITH HUMAN RIGHTS OR THE 9TH CIRCUIT ON THIS ISSUE – THE CHOICE IS YOURS. ORDER FROM RULE OF LAW OR RULE OF MEN?
The court stated in the ruling that “Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence.”
Yet, when there are rights to be protected, why wasn’t it their role to second-guess the policy? When there is a constitutional provision to be upheld, why wasn’t it? Could they not see that to sustain this decision was to sustain a judgement which treats the Constitution and Rule of Law as expendable, and puts in its’ place the arbitrary and often chaotic whims of men?
If this was at all justified on the basis of promoting “order” generally in society, by not restricting school officials ability to implement policy that they feel is best for the schools, than this is fallacious. Within the context of the assumption of Rule of Man, it is somewhat more tenable to have people closest to the people to do much of the work in the “ruling”. But this is more from a perspective of practicality, than one of pure principle.
At the end of the day, it is the Rule of Law, which, in this case, would be the honoring of that explicit dictate to protection of “Free Speech” that would lead to true order and stability in which people could thrive as a result of a more free society. True law spans all time, all culture, even all ethics. Who would question the Golden Rule Principle’s validity in all of human history – past, present, and future.
The Rule of True Law is a system that is blind to any label that may be attached to a person that is out of their control, and thus, it is a system of justice that can even have a chance of living up to the concept behind even the term “justice”. This is not to be confused with the rule of men, masquerading as rule of law, yet still ruling on whatever precedent is available, and whatever loopholes may be exploited.
In the end, how can the possible numbing of the rights of public school students all across that judicial district, making them statutorily amenable to the whims of various men with their various prejudices and inclinations, be conducive to order? Of course, this type and quality of analysis could just as easily be used to question the validity of such a modern court system as the one currently practiced; especially when it becomes increasingly clear that the state, instead of being an impartial party, represents its own interests.
Yet, with all this in mind, one sometimes wonders what ever happened to the true application of the phrase: “Do what is right, let the consequences follow.”
NOTE ONE: [There are many arguments to be made from a pure constitutional perspective that would argue that this case should never have been considered a federal issue, or an issue ruled on in a federal court, at all. That being said, those arguments will have to be the subject of a future post.]