The FOBulous Freedom of Speech

Immigration, illegal or not, has been an integral part of American history. Our founding fathers were illegal immigrants for Christ’s Sake! The first colonists boarded the Mayflower and illegally navigated the seas arriving at the famous Plymouth Rock. They were the first FOBs (Fresh Off the Boat) of America. The big question in contemporary times is what to do with illegal immigration? Some people say loosen the immigration restrictions and let people in the country with greater ease. Others say tighten the borders and deport the current illegal immigrants back to their homeland of oppression. Isn’t the United States the land of the free and the home of the brave; the land of opportunity? Who is to say who is allowed to benefit from what Old Glory has to offer?

Regardless of what beliefs people hold, another part of being an American is having the right to the freedoms of speech and of the press. Andrew Smith, wrote an article, “Immigration,” for his California high school newspaper, The Buzz, speaking against illegal immigration. The article was radical for a high school newspaper and caused a lot of discontent and opposition from parents and students. In one part of the article he visibly compares illegal immigration to a drug bust:

“It would be so easy to bust these illegals. All they would have to do is illegally hire them and if they can’t provide a green card, then it’s bye bye for them.”

A letter of apology was sent out and extra newspapers were collected. Smith was later beaten up by schoolmates for his controversial stance on immigration. Even after the trouble he caused, he published an even more tactless article called “Reverse Racism.”

He argued that whites in this country are treated more harshly than minorities and affirmative action was also racism against whites.

This last article was cleared for publication by the school principal again, but the publication was delayed and in September of 2002, Smith sued for infringement on his freedom of speech. The lawsuit called for one WHOLE dollar in nominal damages.

In Smith vs. Novato Unified School District, the superior court ruled in favor of the school district, but Smith appealed the case and the decision was overturned. According to the California Court of Appeals:

"[A public high] school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption. Schools may only prohibit speech that incites disruption, either because it specifically calls for a disturbance or because the manner of expression (as opposed to the content of the ideas) is so inflammatory that the speech itself provokes the disturbance." A District's response infringes a student's right to free speech when it ‘would chill or silence a person of ordinary firmness from future First Amendment activities.’"

The position the California Court of Appeals took was more libertarian than the way the United States Supreme Court decided cases concerning students’ rights. California will only prohibit speech if it will imminently cause danger. If it will probably cause danger, then the speech is protected. Did Smith’s writing contain material that incited people to act violently against illegal immigrants? No, but was the material damaging to people’s morale? Yes. The U.S. and California Constitutions say that it is alright for there to be risk in the media. According to the Libertarian approach in interpreting the First Amendment, the speaker should be protected and the readers should have to deal with the speech. The First Amendment supports tolerance; basically, if you don’t like it, suck it up.

The Court protected the “manner of the expression (as opposed to the content of the ideas).” The ideas may have been controversial and hurtful to many, but he also did not force his ideas upon anyone. Nothing that was written was unconstitutional.

In Lopez v. Tulare Union Junior High School, there was the notion of loco parentis which suggested that school officials need to act in place of parents when children are at school. With regard to this case, in many people’s eyes, the principal did not act in loco parentis and should be punished accordingly. The principal should not have allowed the material to be published.

Nevertheless, Tinker v. Des Moines said that a student’s rights are not breeched once they set foot on campus even when dealing with loco parentis. The court also quoted Termeniello v. Chicago by stating that “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” In the end, the public good and the market place of ideas should not be compromised because some people are upset. Isn’t that the speech that needs to be protected? The more unpopular, the more protection it should receive, especially if it is political speech like Smith’s was. It is a good thing that Smith was able to publish his ideas because the article also served as a safety valve for Smith. It is better to let him say what he has to say rather than become angry and possibly violent.

The interesting part of the Smith case is that if it was decided by the U.S. Supreme Court, then the decision may have been in favor with the school. In the Morse v. Fredrick case, Morse was expelled from school by displaying a “BONG HiTS 4 JESUS” banner off of school property. The U.S. Supreme Court has ruled that some student rights are compromised once they set foot on campus. This is to prevent further tainting of “innocent” minds. Children just might do an illegal bong hit in the name of Christ when they get home. California courts say that a student’s rights are the same when they are on or off campus. It all depends on how narrowly the First Amendment is defined. California sees the amendment in a broader sense and gives students the same rights as adults everywhere. The U.S. justice system may want to take a hint.

Sources:

http://www.courtinfo.ca.gov/opinions/documents/A112083.DOC

http://www.cfac.org/AGOpinions/opinion_79_58.html

http://www.dailycasereport.com/index.php?q=adv_sheet_by_court/174

http://www.splc.org/pdf/novatoeditorials.pdf

http://www.firstamendmentcenter.org//news.aspx?id=19101&SearchString=smith_reverse_racism

http://www.cartoonstock.com/lowres/hsc3602l.jpg