Maybe They Never Really Meant It

"Ah, the Warren Court," the civil libertarian/criminal defense lawyer says with a rueful sigh. But maybe what he should be saying, in frustration, is more like, "Damn that Warren Court." For the same reason, of course.

A couple of years ago I was the guest lecturer in a law school course on the First Amendment. I was talking about Morse v. Frederick, the Bong Hits 4 Jesus case, when a student asked the obvious question: Why doesn't Tinker apply?

That's Tinker v. Des Moines Independent School District, of course, the case where Justice Fortas explained that neither students nor teachers

shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Except, of course, they do.

The problem wasn't that Fortas didn't mean it. Maybe he did. The problem was that the Court didn't mean what followed from it. Because if students (and teachers) don't shed free speech rights when they enter the school, then what follows is that they have those rights. And then good order and discipline and restrictive rules and "Who's in charge here, anyway?" all go by the wayside.

Because, you know, free speech is disruptive. Oh, sure, Tinker says that free speech is fine as long as it doesn't disrupt. But if it can't disrupt, it can't be free.

I'm not talking about the disruption that comes with interrupting the math class to stage an in-class rally against (or for) sending more troops to Afghanistan. (Which is maybe what Fortas had in mind.) I'm talking about the disruption from the school administration that fears (or actively opposes) expression of the disapproved idea.

So the schools penalize students for the politically or culturally charged statement in school - the pro-Christian anti-ACLU shirt or the anti-gay one. It's the t-shirt honoring a victim of gang violence or supporting same-sex marriage. It's the school's control over the school newspaper content. And of course it's Bong Hits.

And while the Court has so far stayed out of the t-shirt cases, it's happily waded into the others to say, essentially, don't believe too much in Tinker. Why? Because we liked the line about the "schoolhouse gate" when it helped us rule for Mary Beth Tiner, but we don't like it if it means students can exercise free speech about things that offend us.

Day 1 is the rule. Day 2 is the retreat.

Then there's Miranda v. Arizona. You think you know the rule because you hear it on TV all the time.

You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in court. You have a right to speak with an attorney. If you can't afford an attorney, one will be appointed for you.

But that's not really the rule. You don't know the real rule unless you work with it in the courts. Here's the real rule.

You have the right to remain silent, but the right doesn't count unless you flat out refuse to say anything. And you have a right to consult with a lawyer before any questioning, but that right doesn't count unless you say, explicitly, that you will not answer questions until you have spoken with a lawyer. And none of this matters unless you are in custody, whatever that means. And it doesn't matter, either, unless the government actually tries to use what you say against you at trial. Oh, and when you're arguing about what actually happened when you were questioned, the judge will believe the police, not you.

That's the real rule because the Court really doesn't want to see confessions suppressed. It wants a rule it can point to, a line it can say the police cannot cross. And then it wants, as much as it can, to give police free rein to cross the line. (Yes, there were some decisions actually advancing Miranda in the early days. That time is long gone.)

The problem was that the Court never really meant what it said. Warren's effort to cobble together a unanimous Court for Brown v. Board of Education required that he concede the game was hopeless a year later by insisting upon compliance "with all deliberate speed" rather than right away.

Litigation is a messy business. What the Supreme Court says goes exactly to the point where it no longer does. And the lower courts do what they want, mostly with impunity.

We honor the opinions that celebrate our freedom. Brown and Tinker and Miranda gave us much. But not nearly so much, and not nearly so lasting, as they might have.

SO HOW DO YOU INTERPRET THE CONSTITUTION, ANYWAY? Part I

Jeffrey Toobin has a long profile of Chief Justice John Roberts in the New Yorker which you can read here. And when (if) you do, and if you can get past the just being happy with or pissed off at Roberts, you might find yourself actually thinking about what he does and how and why and, ultimately, whether it makes some sense. As I asked, "How do you interpret a constitution?"

Here, you may recall, is what Judge John Roberts, then-supplicant for the job of Chief Justice, told the Senate Judiciary Committee:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

And here's how Toobin describes that humility in practice:

The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

I'm not particularly interested here in whether Roberts got it right in those cases. (Mostly, but not always, I think he didn't.) Rather, I'm interested in how he got there, and whether his description of the job of Justice (which is, frankly, different than the job of judge) is accurate.

So let's start with the analogy itself. First of all umpires are not just judges. They're also police and juries. They do decide when the law applies and what it means, which is what judges do. But they also enforce the rules, which is what the police do. And they decide the facts, which is what juries do.

Supplicant Roberts, was really talking about umpires as jurors, not as judges. Balls and strikes are what they are. The runner is safe or out. Either the ball was caught or it was trapped. The ball was or wasn't fair. The ump may call 'em as he sees 'em, but he either sees 'em right or he doesn't. And that's what juries do. They decide who's telling the truth, whose memory is reliable, which expert is more credible, and ultimately, whether whatever the question is has been proved to their satisfaction by whatever standard of proof is laid down for that issue. On those sorts of calls, perception is king. They may get it right or wrong in some philosophically objective sense, but it's their call and there's supposed to be a right answer. You want the facts, eyesight matters. Legal training doesn't. Trial court judges sometimes act as factfinders, but it's not their primary job. Supreme Court Justices almost never take that role.

Umpires also serve as cops. They break up fights, they evict the manager. They tell the batter to stop scratching his balls and get back in the box. They actually enforce the rules. Judges and Justices are never supposed to do that. And, frankly, except for those pistol packin' judges in some old westerns, they pretty much can't. President Jackson, angered by the Court's rulings in the Cherokee removal cases, is reputed to have said, "John Marshall has made his decision, now let him enforce it," and he went on to defy the Court. When the Warren Court said to integrate the schools, it happened only because the President sent in the National Guard.

But umpires are like judges, even Justices, when they interpret the rules and decide which ones apply when. Is this an infield fly situation? When the ball bounces out of the fielder's glove while he's reaching in to get it, did he intentionally release it? Where's the behavioral line that justifies tossing the manager? Those aren't things that the rule book can define precisely so the careful ump who doesn't need glasses can get them right. Nor are they rule enforcement. They are, rather, judgment calls about what rules apply and whether and when. When they're making those kinds of decisions, umpires are like judges, or Justices. But pretty much only then.

Now, let's think about judges and Justices. Some things, maybe most, really are pretty clear and simple. When you brush away the metaphorical (and literal) dust from those thousands of pages of transcripts and briefs and look at what the Constitution or the U.S. Code actually says, well, what looked troubling and difficult may not be. (As of a couple of weeks ago, almost 40% of the cases decided by the Court this years were decided unanimously; not quite 23% were those troubling 5-4 decisions. You can find those statistics and more here.)

Except, you know, the guts of the job, the parts we (all of us) care about, deal with the things that aren't simple. When the Court agrees 9-0, there's probably not much real controversy about what the law is, and the different analytical methods the Justices might use to get there won't matter much except for purposes of parlor games. Method does matter, though, in the things that are hard, in dealing with the stuff that really can have more than one right answer.

Take the First Amendment. It says, in part, that "Congress shall make no law . . . abridging the freedom of speech." Justice Black took that literally, famously saying, "'No rule' means no rule." But even he didn't really mean that, and nobody else on the Court has, either. Everyone agrees there are some limits. That Holmes chestnut from Schenck v. United States about how "[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic" comes to mind. But everyone also agrees that it's not just Congress that's limited by the First Amendment. It applies broadly to all government entities.

It's not that a Justice deciding the application of the First Amendment has to do something more than an umpire deciding balls and strikes. Regardless of how he makes the decision, the umpire knows the technical boundaries of the strike zone. He just has to decide whether the ball was in or out when it crossed the plate. The Justice is doing a different sort of thing. The Justice has first to figure out what the First Amendment means in the particular context. And that's often not self evident. What is "the freedom of speech"? What does it mean to "abridge" it? What limits, if any, are there on "no law"? What do we do with that word, "Congress"? Answer all those questions and maybe then you can decide whether the particular speech is protected.

In 1969, three students in Des Moines, Iowa, defied their school principal and wore black armbands to protest the Vietnam war. In a case called Tinker, the Supreme Court ruled that students in public schools have free speech protection, too, as long as their speech (black armbands protesting the Vietnam war in that case) wasn't disruptive. Justice Fortas, writing for the Court, said that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Justice Black dissented. School is different, he said. (The Court's opinions are here.)

In 2002, the Olympic torch was being paraded through Juneau, Alaska, and one school dismissed students and said they could attend the parade. Joseph Frederick and a couple of friends did, and while there, they unfurled a banner saying, "Bong Hits 4 Jesus." Frederick was suspended. Five years later, the Supreme Court weighed in. In many respects a typical free speech case, Morse v. Frederick was decided in a 5-4 vote with the so-called liberals on the losing side. Writing for the Court, Roberts said that it was proper for a school to “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” Justice Thomas agreed, but said the court should have gone further, reversing Tinker and declaring that students have no free speech rights. (The Court's opinions are here.)

OK, we've got several possible answers to free speech for students, and each has something to recommend it as the best way to understand what the First Amendment means and how it applies.

1. There is free speech in schools, no rules. Period.
2. There is free speech in schools, and the limits are exactly the same as the limits on out-of-school speech by adults (whatever those limits are).
3. There is free speech, but it can't be disruptive (sort of an expansion on that fire in a crowded theater, but within the same sort of framework). That's Tinker.
4. There is free speech, but it can't be stuff the school wishes you wouldn't say. That's maybe Morse.
5. There's no such thing as free speech in schools.

Option 1 is easy. If you believe that the First Amendment isn't limited to protection against acts of Congress (and pretty much everyone does), then that's what it says, right? There shall be "no law . . . abridging . . . freedom of speech." But nobody, not even the most rigid believer that the Constitution's language controls regardless of what anyone might think about good sense or the intent of the framers believes in Option 1. Why? Well, among other things, "the freedom of speech" might be different from "freedom of speech." There are those things (obscenity and fighting words, for instance) that simply don't qualify, we're told, as First Amendment protected speech, and the article "the" is part of the reason. For another, nobody - at least nobody who's going to be politically successful enough to become a judge or Justice - is going to give a pass to "falsely shouting fire in a theater and causing a panic." And unless you think the framers were fools, you'd probably agree that they didn't mean to protect that particular speech.

Option 2 seems simple also. Why should the fact of school be relevant? Either you have a right or you don't. If juveniles have a right of free speech (and there's certainly nothing in the words of the First Amendment that indicates they don't) then why should it be special? And if free speech is available in school, why should it be limited beyond its limits on the outside?

Option 3 recognizes that school is different. School is intended to be a place where the state inculcates certain things. That's the whole idea, after all, behind compulsory education. So if you disrupt the enterprise, then you're at odds with the very reason for its existence. But schools are trying to inculcate what's at the core of the First Amendment: political awareness. Free speech with some minimal sort of restraint does that. So maybe Tinker got it right.

Option 4 takes up where 3 leaves off. If the point of school is to inculcate, why shouldn't it be to inculcate the behavioral rules the state wants us to follow? And if that's so, and if we acknowledge that society generically believes drug use is a bad thing (Bong Hits 4 Al Quaeda?), well then, shouldn't schools, in order to do their job, be able to control against speech that encourages misconduct. Hey, to bong or not to bong may be a political debate, but public schools aren't debating societies. They're designed to teach and the school gets to decide the curriculum. You want to advocate drug (ab)use, do it on your own time. Think of it as a restriction not on speech itself but on the time, place, and manner of speech - which the law has long said is OK. So maybe Morse got it right.

Option 5 has a legitimate pedigree, too. As Justice Thomas explained in Morse, there were no such things as public schools when the First Amendment was adopted. As public schools developed, nobody thought students had free speech in them. So where'd that right come from, anyway? Bunch of pointy-headed liberal judges just made it up? Out of whole cloth? It's nonsense.

Every one of those positions can be defended by the language, the history, and the fundamental goals of free speech.

For what it's worth, I think Option 2 is the right one. We'll talk about why that's so another time.