We’ve read plenty of court rulings in our time, but the U.S. Supreme Court’s holding in the case of Deborah Morse et. al. v. Frederick is one for the record books. And by record books, we mean Hall of Ignominious Transgressions Against the Goddess Justice, which as you know is located in Philadelphia.
This case centered around a kid named Joseph Frederick, a student at Juneau-Douglas High School, who held a banner reading "BONG HiTS 4 JESUS" in plain view of TV cameras that were recording the passage of the Olympic torch through his city on its way to Salt Lake City in 2002. Frederick freely admits he was just trying to get on TV. He and his fellow students were allowed to leave school to watch the torch pass by, and were under school supervision at the time.
His principal, Deborah Morse, demanded that he drop the banner, and he refused, whereupon she took it. He was suspended for his actions, and he later sued, claiming his rights had been infringed. Amazingly, a majority of the Supreme Court finally agreed.
We dissent from the majority opinion, written by Justice John Roberts, point-by-point, below:
- While the watching of the torch was a school-sanctioned and school-supervised event, Frederick was not on school property when he unfurled his banner. In fact, he was on public property. No one could argue that he doesn’t have the right to broadcast his message on public property, but the majority imbues the "school-sanctioned" nature of the event with the ability to impose school policy outside the jurisdiction of the school, on public property. We don’t believe any school has such authority, and thus, this is grounds for rejecting the school’s claims.
- The majority gives great credence to the school’s policy (indeed, the national policy) that urges people — and especially young people — to avoid drugs. But then the court’s majority does a strange thing: It equates "BONG HiTS 4 JESUS" with advocating drug use. But we think the banner does no such thing. It doesn’t say "[TAKE] BONG HiTS 4 JESUS." In fact, on Page 7 of the majority’s opinion, the court constructs several meanings for the banner, all of which add words in brackets so to reach the conclusion that the sign encouraged drug use. If you have to add words to establish the advocacy, we’d suggest there was no advocacy in the first place.
- From Page 13: "Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse." Here, the court ridiculously conflates a banner that mentions drug use with drug use itself. Do the justices really believe that kids will see a banner like this and immediately begin scrounging around for marijuana? Or, as the sensible dissent penned by Justice John Paul Stevens says, "Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade the average student or even the dumbest one to change his or her behavior is most implausible." Go Stevens!
- The court’s majority rests its decision on the special nature of the school environment (even though this conduct was not committed on school grounds). "The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy … extends well beyond an abstract desire to avoid controversy," the majority writes. But the "danger" here is nonexistent! First, Frederick was not advocating anything. Second, even if his banner could be read to be advocating drug use, it was unlikely to persuade anybody to use drugs. To use a word like "danger" is unnecessary fearmongering, perhaps the inevitable result of combining the two biggest foils for authoritarians in our society: the war on drugs, and "the children."
- Justice Clarence Thomas‘ dissent — which argues students don’t have free speech rights at all — was ridiculous, albeit well-reasoned, much more so than the incomprehensible concurring opinion written by Justice Samuel Alito and joined by Justice Anthony Kennedy.
- The correct answer to this case is simple: Frederick has the right to broadcast his message, as lame as it was, especially given that he was not on school grounds at the time he did it. His principal violated his First Amendment rights by confiscating his banner, and the suspension further exacerbated the violation. To give credence to the particular message on the banner — and contrast it with the policy of the school, which cannot apply off school grounds — is to establish a content-conscious standard of censorship of a message simply because the school disagrees with that message. In short, the majority erred seriously, and eroded a bit of the First Amendment in the process. Thank you very much, justices.
An Open Letter to Las Vegas City Manager Doug Selby
Dear Doug:
We read your comments in the Las Vegas Review-Journal on Wednesday regarding the secret proposals to build a sports arena downtown. Frankly, while we were disappointed with your support of that secrecy, we were not surprised. (After all, as the Las Vegas Sun noted today, state law demands that certain bids be kept under wraps.)
What did surprise us were these remarks:
"If we weren’t second-guessed every time we do something, we might be more inclined to release them. But we’re criticized, unfairly, I think, because a reporter sees it differently than the elected body."
As one of the reporters who often second-guesses the city on varied subjects, let me be the first to say: Welcome to America, dickhead! In this country, reporters have been second-guessing elected officials since before we were even a county and had elected officials! Surely, they taught you that in city manager school? It’s kind of our obligation.
Furthermore, your wounded pride is no reason to keep proposals secret. If you can’t stand a little second-guessing, then perhaps it’s past time for you to retire and let somebody into the job with a little thicker skin. (How about Mayor Oscar Goodman, who told the Sun for today’s story that "I don’t mind being second-guessed"?) After all, it’s not like everybody doesn’t he’s really running things anyway.
And another thing: Do you think reporters will second guess you less or more as you keep things confidential? It doesn’t really take a rocket scientist to figure out that a transparent government, while having to put up with more pesky second-guessing, also runs better than one that’s run in secret, where backroom deals can fester.
Mayor Goodman did say in the story that the public should "trust us." But we’d only point out — with all due respect to his honor — that the R-J story about secret arena bids appeared directly below another story headlined "Another payoff detailed." Quite frankly, Doug, trust isn’t at an all-time high right now.
And finally, it’s not that we don’t have reasons to second-guess the city and its elected leadership. There are plenty of examples of horrible decisions that dot the municipal landscape, practically screaming at residents to toss some much-needed attention your way. Take Neonopolis, for example. How’s that underground government-financed parking garage doing these days? What about that little incident with the allegedly "free" city birthday cake that cost the Centennial Committee $95,000? Or the sweetheart deals with groups like The Tennis Channel, which obligate the city to roll out the red carpet for VIPs at taxpayer expense? The tax subsidies given to downtown businesses, just so they’ll locate there? The much-needed scrutiny of that den of corruption, the Crazy Horse Too, that came only after its owners pleaded guilty to crimes in federal court? An ordinance against feeding the homeless? We could go on, but you get the point.
So you see, Doug, not only is it our job to second-guess the city, it’s also kind of an obligation. But thanks for making it so fun!
Love,
Us at Various Things & Stuff
Sorry we missed a couple days of blogging, readers. We were busy absorbing the local crimes that were committed by former Clark County Commissioner Erin Kenny and the distant crimes committed by the U.S. Supreme Court. (We’ll blog separately on those.)
But Kenny’s case gets more and more intriguing, with the dispatches from the Review-Journal’s Adrienne Packer. Today’s story — detailing how Kenny, her accountant and the people paying her bribes set up an account in the beautiful Cook Islands — is especially interesting.
Our favorite part: After the FBI raided Cheetah’s, the strip club owned by bribe-offerer Mike Galardi, Kenny met with her attorney, Frank Cremen. (Man, how we wish we could have pierced attorney-client privilege to listen in to that conversation!) Afterwards, she turned to her accountant and asked, "Are you going to turn on me?" Ironically enough, Kenny would later do that very thing after having been confronted by the FBI with the overwhelming evidence against her.
Here’s the thing: After all the testimony, all the bribes, all the corruption, all the wiretaps, all the jail sentences handed down, it’s become clear that Kenny is the worst offender of them all. Brazen, shameless and perfectly willing to sell her own soul (or at least her body, as previous testimony about Kenny’s relationship with Galardi indicates) for money. Yet, there’s little doubt in our minds that Kenny will do the least amount of time of all.
The government will say it’s because Kenny cooperated so well that she’s only going to jail for a short time. They’ll say her relatively light sentence will encourage other white-collar defendants to roll early in an investigation in order to get a good deal from prosecutors. And they’re right about all of that.
But it saddens us that Kenny — arguably the most corrupt official Southern Nevada has seen, at least in the modern era — is going to walk away without ever really paying for her crimes, while lesser officials who did much less than she will spend more time behind bars.
» We suppose it all depends on what the meaning of "public" is?
The Las Vegas Monorail, as regular readers know, is looking for money to expand its current line to McCarran International Airport, to get more tourists riding the train. It’s looking at private sources of money to pay for the expansion, but since monorail bonds are in "junk" status, that’s going to be a tough sell.
So what about tax-exempt bonds, the kind that built the original train line? They’re issued by the state, although taxpayers are not underwriting them, nor would they be on the hook if the monorail went into default. The monorail considers that "private" financing, although we disagree. If a government is involved, the bonds aren’t private, we reason. (And it’s worth noting that the monorail could not have been built without relying on the state-issued bonds.)
Thus far, the monorail’s policy has been to eschew going back to the public teat for money for the McCarran expansion. Monorail CEO Curtis Myles said in the Feb. 3, 2006, Las Vegas Sun that he wanted to avoid using government bonds or public debt to build the monorail. (Bear in mind, however, that to Myles, tax-exempt, state-issued bonds are private.) Monorail spokeswoman Ingrid Reisman said in the Review-Journal Feb. 11, 2006, that "We have no plans to go to the public sector," if the monorail had trouble selling bonds. On Feb. 21, again in the R-J, Myles declared flatly "It will be privately financed." And on this very blog, back in December 2006, Reisman told us the monorail wouldn’t be seeking to use the state-issued, tax-exempt bonds that built the train the first time around.
That’s why we were surprised on Wednesday to see a story in the R-J in which Reisman allegedly said the airport expansion line would be paid for with those tax-exempt bonds. Curious, we called Reisman for an explanation.
First, the monorail isn’t seeking tax-exempt bonds for the expansion line, she said. (The line in the story was an error, and we’ll be scanning the R-J for that correction.) But, she added, that doesn’t mean the monorail won’t seek tax-exempt bonds for the line in the future.
"It’s not that we’ll never seek tax-exempt bonds," she said. But that’s just one of the options the monorail is examining.
For our part, we’re against tax-exempt bonds for the monorail. If it wants to call itself a truly private system, it should do what private businesses do when they need money: Get a bank loan, or issue taxable bonds to raise the money. If it can’t get money that way, the much-lauded free market is sending a message.
» U.S. Sen. John Ensign apparently didn’t heed the calls of local union members and vote to approve a bill that would have made it easier for unions to sign up workers. Ensign said he prefers the status quo, a secret-ballot election supervised by federal officials. "Secret ballots protect workers from intimidation, and this [bill] was political payback to big labor despite the fact that union members overwhelmingly support secret ballots," Ensign said. (The bill failed, 51-48.)
Right. Because we know that management never, ever attempts to intimidate workers when it comes to a secret-ballot election. You couldn’t picture, say, megalomaniac casino developer Steve Wynn getting all nice and apologizing for being such a dick in order to keep people from voting for a union, could you? (Actually, you don’t have to picture it: It actually happened!)
But Ensign didn’t just vote no and make lame press statements about this bill. Under his command, the National Republican Senatorial Committee actually produced a video and appealed to big business to raise money for Republican senators and Senate hopefuls, using the bill as an issue.
So, working men and women, remember: Not only does John Ensign not care about you, he also wants to raise money on your backs from the very people who seek to avoid the accountability and equity that comes when unions bargain collectively. Tuck that away, for 2012, when Ensign will up for his own secret-ballot test.
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