I personally think its wrong to rely on Tinker unless you show proof:
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did anyone come forward as being injured by this speech?
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did the school show that it caused substantial disorder?
[quote]vroom wrote:
Doogie, the issue remains, no matter who was removed from the chamber, why should the political affiliation make any difference?
[/quote]
For the love of God, vroom, it’s a completely different thing.
EVERYONE wearing a T-shirt with a slogan on it was removed from the SOTU speech, no matter what slant the slogan had. Those are the rules, and no one is discriminated against.
In the Poway case, the only shirt that wasn’t allowed (on a day that the school devoted to the Gay cause) was the one that said God thinks fudge-packing is shameful–specifically for the reason that the fruits are too sensitive to handle mean words. Harper WAS discriminated against.
(Disclaimer–I just threw in the derogatory terms for lothario’s benefit, because I think it is crazy to believe the government should tell us not to be assholes.)
[quote]Diomede wrote:
I personally think its wrong to rely on Tinker unless you show proof:
-
did anyone come forward as being injured by this speech?
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did the school show that it caused substantial disorder?
[/quote]
It was wrong of the court (and the school) to assume gay kids are weak and puny pussies who can’t handle a freaking t-shirt.
I just don’t see where you draw the line here. There are always going to be little pussies who get offended by anything negative. If you don’t believe me, just say something bad about Clay Aiken and watch Vroom start foaming at the mouth. Should I not be able to criticize Clay because Vroom won’t be able to concentrate?
What about advocating for something other people really hate? If I wear a shirt that says “I LOVE STEAKS”, can a vegetarian be so upset that she could ask the school to make me take off the shirt? Of course then, my manly chest hair would totally distract her and all the other females.
School uniforms are the only sane way to handle this. Of course, what if Harper was walking around saying, “God does not like the gays”? Would the school have stuck him in the office all day?
[quote]Diomede wrote:
I personally think its wrong to rely on Tinker unless you show proof:
-
did anyone come forward as being injured by this speech?
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did the school show that it caused substantial disorder?
[/quote]
Excellent question, though the key is question 2.
The answer is no. As Professor Carpenter pointed out in the post I excerpted above, it is disingenuous to claim that wearing black armbands during Viet Nam, particularly during times of planned disruptions and protests, would not be disruptive, whereas wearing that t-shirt would be disruptive. Which is why it didn’t fit into the Tinker precedent if it were followed faithfully. The majority is trying to state, in its tortured logic, that certain opinions are by their very nature inherently disruptive, and yet claiming they aren’t singling out those opinions based on the opinions themselves.
I believe 1 is no too, though that’s less important, particularly because of the difficulty in proving harm (and yes, the burden of proof would fall on the person asserting the harm).
[quote]BostonBarrister wrote:
You’re so sure you have my position pegged that you refuse to understand it…
vroom wrote:
Oh for fuck sakes. What a bunch of horseshit. Are you taking lessons from Headhunter?[/quote]
No vroom, the only horse$h*t around here is apparently the material you are using to keep you bad points strung together.
[quote]vroom wrote:
I understand that there are differences, but let’s be honest, the issue here is that the court was involved in what can be spun into a situation involving legislating from the bench.[/quote]
If you understand the differences, then perhaps you understand that the situations are different?
I know you want to throw on your aggregator hat and push everything together so it works with your logic, but the situations are necessarily distinguished – most importantly, because you don’t even know whether you’re talking about the same “right” in the various instances.
While your point on the t-shirts was obviously related to 1st Amendment freedom of expression, it was easily differentiated as a “time, place or manner” restriction, which has always been permissible. And further, apparently the capitol police were enforcing it incorrectly – hardly a governmental effort to cull the protections of the 1st Amendment, which is what is occuring in the 9th Circuit’s opinion.
And, as has been pointed out to you many times, the claims of those arrested as to why they were arrested don’t do that either – particularly when the government itself isn’t claiming the power to discriminate based on opinion. An argument over whether the police were lying about their reasons is very different from an argument about whether the protections of the 1st Amendment are being officially roled back in a particular instance because the government has the power to discriminate based on opinions (and setting a precedent for future rollbacks in other instances).
[quote]vroom wrote:
If rights are a concern, then they are a concern. The fact that you don’t care about other issues of rights being bent makes me think you have something else you are whittling away at.[/quote]
Yes, “rights” are the concern. The actual extent of the protections of the 1st Amendment are the concern. Not tertiary issues involving questioning police motives or inadvertent police applications of perfectly legal standards.
[quote]
BostonBarrister wrote:
lothario,
The problem with your equation is those examples don’t express a viewpoint - they aren’t arguments (even bad ones). Freedom of expression is essentially freedom to express a political viewpoint.
The government can have time, place and manner restrictions that disallow people from expressing ALL political viewpoints in certain circumstances. What it cannot do is restrict certain viewpoints more than others if it chooses to allow viewpoints to be expressed.
lothario1132 wrote:
Okay, but remember the example I gave about wearing a “Jesus is dead” T-shirt on Easter as being equally inappropriate? Would it be out of line for a school administrator to make me change it? Honestly, I don’t think that’s restricting my free speech in some harmful way at all.[/quote]
The point of the protections inherent in the 1st Amendment for freedom of expression is that the government, in all instances save a very few exceptions, is not empowered to decide whether restricting the viewpoint would be harmful. It simply isn’t allowed to restrict viewpoints, because we don’t trust the government with the power to smother the expression of any minority viewpoints.
[quote]lothario1132 wrote:
There comes a point at which first amendment rights need to bow to the concept of propriety, and this is good. Can I say “Uncle Fucker” over the radio? No. It’s unnecessary and inappropriate… but “Fucker” is just a simple word, right? It’s not hurting anybody, is it?
And yet, here we go… censoring me, restricting my free speech. Why?[/quote]
Broadcast censorship is a particular line of precedent that is keyed on two unique assumptions, one of which is becoming more and more untrue with technology: 1) The government owns the airwaves and 2) that the airwaves are a scarce resource (this is so wrong today as to be laughable).
But aside from that, your example misses the mark because mere profanity doesn’t convey a political argument, except perhaps in the broadest sense of making a political statement that you are for swearing.
The protections of the 1st Amendment are at their strongest when protecting political speech – arguments on political issues. And no matter how odious the political opinion, those protections need to be defended.
[quote]lothario1132 wrote:
The same reason that the kid needed to take off the God Hates Fags shirt. It serves no purpose except to disrupt, dismay, and insult. It’s inappropriate for wearing to a school.[/quote]
It was quite clearly a shirt designed with a political message – and doubly so due to the circumstances of the case, wearing it during and around pro-homosexual days on campus.
[quote]BB wrote:
In a precedential system such as ours, it’s important to deny a foothold to any idea that the government can engage in viewpoint-based discrimination.
lothario1132 wrote:
But we already do it, all the time. Can we show bare titties on NBC?[/quote] See the differentiation of broadcast media (TV and radio - and not cable versions or satellite versions either). [quote] The discrimination came from the inappropriateness of the shirt, not from the fact that it was a Christian viewpoint. Do we let the KKK march through our schools? No. There is a time and a place, and drawing that distinction does not impinge on our First Amendment rights.[/quote]
A protest march would likely meet the “disruptive” standard. Wearing a t-shirt apparently didn’t, in all circumstances - it depended on the message. That’s impermissible.
[quote]zarathus wrote:
The opinion gave example of what would and would not be censorable. “Young Democrats suck” and “Young Republicans suck” would not be enforceable, bc no one is harassed for those beliefs. The “Jesus is dead” shirt? Probably should be censorable according to both the Tinker standard and the Harper case. If I were a devout Christian and saw such a shirt, it would probably damage my self esteem and disrupt my ability to concentrate. The Harper opinion based much of its judgment on the right to an equal education under the law, so yes, such a shirt would be, for me, under the same category.[/quote]
And this is why it’s utter crap. It singled out political opinions based on how odious it viewed the messages to be. “Disruptive” cannot be defined down, from Tinker, to the point that someone has hurt feelings or gets upset because he does not agree with a message.
BTW, remember, you need to distinguish general political opinions, which are protective, from personal insults, which are not. For instance, a t-shirt that said “God hates little Jimmy Smith because he’s a fag” would not be permissible. General statements about a group though, are protected political opinions, whether they’re correct or incorrect in logic or in society.
[quote]zarathus wrote:
Again, I am not the biggest proponent of this development of the case law, but I have to call it for what is, not what I would like it to be. Is the idea in the judgment unfair? It might be, in some cases. It is unfair in the same way that having to be 18 to vote, or 16 to drive is unfair, bc those are arbitrary defintions of adulthood, but they are agreedupon heuristics, and unless someone puts forth a better one, its what we’re stuck with.
Does anybody have a better idea than the Tinker case law? No free speech for school children? Absolute free speech for children? In the Tinker case, it would be arbogated free speech, contigent upon two definiable criteria: whether the speech is disruptive and whether it is injurious. I myself might think that children are tougher than what the Harper and Tinker decisions give them credit for, and that the second prong of the Tinker test should be only a bit closer to only direct threats. However, wishing does not make it so.
The Harper opinion interpreted the Tinker prescedent as it was meant to be interpreted. Even though the mentioned that homosexuals are a specifically susceptible group, did they specifically say that the harmful content in the shirt was the belief about homosexuality? No. The content was in the message about a group represented in the student body; it could have just as easily been Christians, athiests, heterosexuals, or what have you. The opinion specifically diffentiates (yes, on that elusive p. 35) between the content of a belief (in their example, religious belief) and in the attacking posture of a message.
[/quote]
In the case that political opinions on shirts are harmful and disruptive in any particular case, they can be banned GENERALLY. That’s the extended power the government has over students’ free speech – the government couldn’t ban adult speech for the same reason. What the government cannot do is ban particular t-shirts or arm bands or whatever based on the sentiment expressed.
BTW, I should note that advocating violence (and violence by a private citizen that isn’t self defense is a crime) is almost surely not protected political speech, and in my mind it should not be. Theoretically, advocating crime (or violent revolution for that matter) isn’t a political opinion, because it advocates going outside the political process – and refuses to accept a loss in the political process (the loss that made the law a person would advocate violating).
[quote]doogie wrote:
Diomede wrote:
I personally think its wrong to rely on Tinker unless you show proof:
-
did anyone come forward as being injured by this speech?
-
did the school show that it caused substantial disorder?
It was wrong of the court (and the school) to assume gay kids are weak and puny pussies who can’t handle a freaking t-shirt.
[/quote]
Yes, I’m quoting myself. This fruitcake isn’t a pussy:
Chih wasn’t bothered by the open expression of homophobic messages, he said, because they weren’t violent or vulgar.
“If they’re stating their own belief that homosexuality is wrong, that’s not promoting hate or violence against us,” said Chih, 18. “If I want to promote my civil rights, I can’t tell another group of students that they can’t do it.”
http://www.sacbee.com/content/news/story/14248330p-15065706c.html
Apparently advocating is bad, too:
“IT’S GREAT TO BE STRAIGHT”
http://www.theithacajournal.com/apps/pbcs.dll/article?AID=/20060427/NEWS01/604270352/1002
So I should have sued my school because I couldn’t wear a Black Sabbath T-shirt?
The MAN was trampling on my First Amendment rights back then?
Or maybe it would just be retarded of me to try to sue somebody over a T-shirt?
In all of our talk of free speech and precendent, maybe we are all forgetting that it’s litigious bullshit like this that makes it a pain in the ass to get anything accomplished in this world. My beloved health care industry has been cut off at the nuts because of idiots with lawyers fucking everything up for no good purpose. No good purpose.
This whole case is bullshit. I can see BB’s points and I thank him for clarifying the finer points of all this mess for us, but good lord. A fucking shirt.
[quote]lothario1132 wrote:
In all of our talk of free speech and precendent, maybe we are all forgetting that it’s litigious bullshit like this that makes it a pain in the ass to get anything accomplished in this world. My beloved health care industry has been cut off at the nuts because of idiots with lawyers fucking everything up for no good purpose. No good purpose.[/quote]
I think raises another interesting point, one that seems kind of obscure, but I think is important. Ordinarily, you need ‘standing’ to sue - which often means having some kind of recognized legal injury. Nowadays, legal injury amounts to potential-or-some-slight-chance-that-someone-you-might-know-or-someone-they-might-know-might-be-offended-by-something-somewhere.
Just as a personal preference, I think legal injury has its relevance and should be ratcheted up higher.
[quote]doogie wrote:
For the love of God, vroom, it’s a completely different thing.
EVERYONE wearing a T-shirt with a slogan on it was removed from the SOTU speech, no matter what slant the slogan had. Those are the rules, and no one is discriminated against.
In the Poway case, the only shirt that wasn’t allowed (on a day that the school devoted to the Gay cause) was the one that said God thinks fudge-packing is shameful–specifically for the reason that the fruits are too sensitive to handle mean words. Harper WAS discriminated against.
(Disclaimer–I just threw in the derogatory terms for lothario’s benefit, because I think it is crazy to believe the government should tell us not to be assholes.)
[/quote]
LOL, Doogie, I said before, I know there are differences. However, when restricting the speech of grown adults in this manner, I find it troubling as grown adults should be immune to most casual restrictions on free speech.
Is the government now able to apply dress codes to everyone? What if government dress codes disagree with the populations dress codes?
Maybe nobody should be able to wear skirts on capitol hill, because the older congressmen and senators will start chasing them around?
What if I wore a t-shirt without a slogan? A t-shirt but with long sleeves? Howabout a sweatshirt that had a pattern on it that made it “look like” a suit? What if I wore a dress shirt with a slogan? Oh no, what if I wore a fairly see through dress shirt with a t-shirt underneath, with a slogan, that could be read through the dress shirt? What if the dress shirt was not tucked in? Maybe if I left a couple buttons open and had a slogan painted on my chest? What if someone wore earrings with slogans? Maybe I have a tattoo on my face with a slogan, can I go in? What if my hair is shaped into a anti-war symbol? What if I make a shape or sign with my hands while in the chamber that sends a message?
Who really wants the government to try to get into the middle of such tripe and figure out what does and does not constitute approrpiate dress/speech for citizens above and beyond decency laws? Are you seriously saying the government should stop all expressions of opinion no matter how subtle.
It doesn’t take DISCRIMINATION for their to be infringements on rights. So, I am willing to have children (in an educational setting) have some rights restricted so that they can get educated, but I don’t want such restrictions outside of the school or applied to adults.
For the love of God (just kidding) can’t you see the similarites?
Anyway, in the particular case at hand, it is arguable whether or not there is discrimination because any such insulting, or counter to the schools agenda, message will be censored, not just the one that was censored on that day. Being the first example of a general rule doesn’t imply discrimination either.
More abuse of Tinker: