Editore"s Note
Tilting at Windmills

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June 25, 2007
By: Kevin Drum

LEGAL NEWS UPDATE....In the least surprising judicial decision so far this year, a DC Superior Court judge decided today that a fellow DC judge doesn't deserve $54 million because a local dry cleaners allegedly lost his pants. He deserves nada. Justice has been served.

In other, slightly more elevated judicial news, the Supreme Court handed down four decisions today. As Andrew Cohen points out, conservatives won them all:

Each of these decisions help establish the true conservative bona fides of this Court. It is more conservative than it was last term, when Sandra Day O'Connor sat in one some of the cases. And was more conservative last term than the term before that, before Chief Justice Roberts and Justice Sam Alito joined the Gang of Nine. In fact, the Court now is is so entrenched on the ground of the legal right that, aside from the global warming case decided earlier this year, it is hard to point to a single major ruling this term that could or would give succor to legal liberals or even jurisprudential moderates.

I think I have a case of the Mondays.

Kevin Drum 1:38 PM Permalink | Trackbacks | Comments (108)

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Comments

after reading your post, i now have a case of the mondays.

oh, and i heard that the dry cleaning store owner in the case of the lost pants lost his life savings covering his legal fees.

Posted by: mudwall jackson on June 25, 2007 at 1:42 PM | PERMALINK

Thanks, Ralph Nader! can you please run again so we can have unanimous decisions next time?

Posted by: northzax on June 25, 2007 at 1:48 PM | PERMALINK

Yeah, the ACLU, which filed a brief in support of the ruling in the McCain-Feingold decision, is composed of a bunch of conservatives.

The ruling for the high school principal's censorship, however, was nonsensical.

Posted by: Will Allen on June 25, 2007 at 1:50 PM | PERMALINK

"Get over it!," quoting Scalia, J., re Bush v. Gore.

Posted by: David in NY on June 25, 2007 at 1:59 PM | PERMALINK

I would sell that guy a new pair of trousers for only $20million or so.

Posted by: craigie on June 25, 2007 at 2:02 PM | PERMALINK

it's not merely that this court is conservative; this may be the most precedent-overturning-inclined court in a very long time.

as for the aclu, surely will allen knows that it is not an ideologically liberal organization; it is an ideologically civil libertarian organization, and periodically deviates from political liberalism as a result.

now, admittedly, your typical right-wing yahoo doesn't get that, but will allen does....

Posted by: howard on June 25, 2007 at 2:05 PM | PERMALINK

Kevin, I think you are seeing this through the wrong lens. What's new about this court is their deference to government action over personal liberty. You could make a pretty credible argument that this deference is ultimately as much anti-conservative (conservatives just happen not to mind up till now since they were nominally "the government" in terms of things like the war and the legislature) as it is illiberal.

Posted by: plunge on June 25, 2007 at 2:08 PM | PERMALINK

I think your case of Mondays is only going to increase on Thursday when the Court (hopefully) will deny local school boards the ability to discriminate against students based on their race for school placement in the name of either creating or maintaining "diversity."

Thank God Sandra Day O'Connor is gone. Now if only Bush can get one more appointment should Stevens or Ginsburg decide to call it quits.

Posted by: Chicounsel on June 25, 2007 at 2:08 PM | PERMALINK

Stare decisis, schmare decisis.

Let's face it, folks: This court won't be happy until they ignore every single legal precedent that gets in the way of their pals in business, NRA and the GOP.

Maybe if the Dems had shown any amount of spine during the Roberts or Alito confirmations we wouldn't be in this mess.

Posted by: Mark D on June 25, 2007 at 2:10 PM | PERMALINK

Thanks, Ralph Nader! can you please run again so we can have unanimous decisions next time?

Posted by: northzax on June 25, 2007 at 1:48 PM

Don't blame Nader -- blame the Florida Democratic party, in 2000 still run by the rural good-ol'-boys of times past, for failing to get out the black vote in sufficient numbers that would have made the hanging chads et al irrelevant. Blame Gore for running a lousy campaign in which he couldn't even carry his home state. Nader's a straw man here.

Posted by: Vincent on June 25, 2007 at 2:11 PM | PERMALINK

See...
I fucked you good see...
Y'all thought you could misunderestimate me didn'ya?
See who is seeing now?
In other words...
I am the Commander guy...
The guy who commands and decides see...
Or puttin' it another way: The guy who decides and commands...
Got that see?...
The Decider gets the last word see...
That's the way it works in a Demockracy see...
So I commanded...
To fuck you liberals...
To kick your asses see...
And I will be kicking your asses for years to come...
I commanded that see...
Ya'all got your PhD degrees...
But I am the Commander guy...
I'm your boss...
I set policy see...
And my policy is simple:
The Decider gets the last laugh!
See....


Posted by: President Bush on June 25, 2007 at 2:13 PM | PERMALINK

Solution to the case of the Mondays:

Declare Inkblot as presidential candidate.

Dress Inkblot up in an expensive pair of pants.

Make Inblot's campaign slogan "Catnit bong hits 4 cats".

Mark all of Inkblot's kitty box contents as TS/SCI (will require only minor renovations!) and have Cheney do the classified material review.

Posted by: optical weenie on June 25, 2007 at 2:14 PM | PERMALINK

Kudos Vincent! Right on the money!

Posted by: zak822 on June 25, 2007 at 2:15 PM | PERMALINK

Maybe if the Dems had shown any amount of spine during the Roberts or Alito confirmations we wouldn't be in this mess.
Don't forget that the Dems thought they had won a major battle back then when they preserved the filibuster option by agreeing not to use it.

Posted by: Qwerty on June 25, 2007 at 2:15 PM | PERMALINK

Surely howard knows that my post merely pertained to the characterization of today's McCain-Feingold decision as being "conservative".

Posted by: Will Allen on June 25, 2007 at 2:22 PM | PERMALINK

Yeah, howard, if only the Court in the latter part of FDR's day could have had more respect for precedent. What? Oh, never mind.......

Posted by: Will Allen on June 25, 2007 at 2:26 PM | PERMALINK

Someday soon, farmers and industrialists will be able to use children to replace the immigrant labor lost to increased border security.

Posted by: Brojo on June 25, 2007 at 2:26 PM | PERMALINK

Vincent, I will blame Nader as much as I like. You can point to a number of things that, independently, enabled Boy George to steal the election. But one of them was Nader. If Nader does not run to salve his ego (and his loony even in 2000 belief that there were no differences between the parties) and Gore wins Florida clearly (and also NH). So any and all of the actions, and concomitant effects, of President Cheney, err, Bush is on Nader's grotesquely enlarged head. The man is responsible for the debacle of the last 6+ years and the recent sounds of a 2008 campaign only demonstrate how utterly despicable--and divorced from reality--he is.

Posted by: Marlowe on June 25, 2007 at 2:55 PM | PERMALINK

now, admittedly, your typical right-wing yahoo doesn't get that, but will allen does....

What Will "you STFU already!" Allen doesn't get is that his jack high does not beat a flush.

Posted by: Disputo on June 25, 2007 at 3:10 PM | PERMALINK

Isn't hiding your political affiliation so you get a fair decision in court one of the signs of internal social rot?

Posted by: Zit on June 25, 2007 at 3:44 PM | PERMALINK

Three of the four decisions are correct, in my opinion. The only one I disagree with is the BongsforJesus case.

And, yes, the ACLU is shot through with an over preponderance of liberals, but that does not mean they can't be on the correct side of some debates. In the case of the McCain-Feingold case, they are on the right side, and I suspect if the plaintiff had been the Sierra Club or NARAL, most you would have been applauding the decision, though one might suspect that one or more assenting and dissenting jurists would have found reason to switch sides.

Posted by: Yancey Ward on June 25, 2007 at 4:06 PM | PERMALINK

Marlowe,

Nader wouldnt have received anywhere near as many votes if the DLC and Clintonistas hadn't sold out the left on virtually every economic issue and made the Democratic party into Republican Lite.

Posted by: Michael7843853 G-O in 08! on June 25, 2007 at 4:12 PM | PERMALINK

Nader wouldnt have received anywhere near as many votes if the DLC and Clintonistas hadn't sold out the left on virtually every economic issue and made the Democratic party into Republican Lite.

You can tell Nader voters by the fact that their noses are missing and their faces are really pissed off about it.

Posted by: Disputo on June 25, 2007 at 4:18 PM | PERMALINK

"Nader wouldnt have received anywhere near as many votes if the DLC and Clintonistas hadn't sold out the left on virtually every economic issue and made the Democratic party into Republican Lite."

I happen to despise the DLC and I am not wild about the Clintons on the issues. The last Democrat presidential candidate I enthusiastically supported was Mondale and I am no fan of any of the current candidates (though I think I could enthusiastically support the post-2000 Gore in 2008). Nevertheless, whether in 2000 or 2007, anyone spouting this tripe is as deluded as Nader.

Posted by: Marlowe on June 25, 2007 at 4:22 PM | PERMALINK

In Morse, et al. v. Frederick, even the dissent is a disgrace.

The dissent by Justice Stevens, joined by Souter and Ginsburg, hinges on the vagueness of "Bong hits 4 Jesus." Apparently, if the banner had said "Enjoy cocaine" or some other message that more clearly encouraged the consumption of illegal drugs, they would have joined the majority.

A more reasoned dissent would have simply stated that the authority of the principal and the school district does not extend beyond school property. The banner was displayed across the street, not on school property. In the Bong hits 4 Jesus case, the fact that the banner was unfurled across the street from the school is immaterial; the school and the principal have no more authority over signs across the street than they do over signs a mile away.

Ah, I hear someone objecting, what if someone displayed a banner across the street from the school with information on how to obtain plagiarized essays? Shouldn't the school have some remedy against that? And my answer is that whatever remedy might apply in that case would apply regardless of where the plagiarism-encouraging banner is displayed. In short, the Supreme Court, especially a conservative one, should have rejected the notion that property rights extend to the other side of the street!

Posted by: Joel Rubinstein on June 25, 2007 at 4:22 PM | PERMALINK

Ack. I meant Democratic candidate not Democrat in my last post. What an embarrassing typo.

Posted by: Marlowe on June 25, 2007 at 4:24 PM | PERMALINK

Joel, while I agree that the decision was ridiculous, the kids were participating in a school event during school hours. They were under school authority.

Posted by: Disputo on June 25, 2007 at 4:28 PM | PERMALINK

Any damage done to Mc-Cain-Feingold is a victory for free speech.

As to the kid with the banner, I seem to remember my father telling me I could have all the free speech I wanted when I turned 18 and he was no longer responsible for me. Good advice, I passed it on to my son.

Posted by: save_the_rustbelt on June 25, 2007 at 4:28 PM | PERMALINK

More of the Nader nacissism; "It's everyone else's fault but ours." Never mind that Florida wouldn't have even been needed were it not for Nader. Never mind that 42% of Nader voters reported that they would have voted for Gore had Nader not been running. (Election 2000 exit poll results. That's over 1.3 million Nader voters right there.) Never mind that Gore would have won Ohio, West Virginia, New Hampshire and probably a few others. Never mind the help the Republicans gave the Naderites. Never mind that Nader took Bush's side in the Florida recount.

Posted by: MaxGowan on June 25, 2007 at 4:29 PM | PERMALINK

Joel Rubinstein: In short, the Supreme Court, especially a conservative one, should have rejected the notion that property rights extend to the other side of the street!

As I undestand it, the issue wasn't whether the behavior occurred on school property but that the event where the behavior occurred was a school event; the kid were out of school to attend it. At least in California, this would make the school still liable for the kids well being and presumably responsible for their behavior.

Posted by: anandine on June 25, 2007 at 4:42 PM | PERMALINK

Principle Deborah Morse is a cult.

Posted by: Brojo on June 25, 2007 at 4:47 PM | PERMALINK

I would have voted for Gore had Lieberman not been his running mate.

Posted by: osama_been_forgotten on June 25, 2007 at 4:48 PM | PERMALINK

a vote for nader was the equivalent of a vote for bush.

Posted by: mudwall jackson on June 25, 2007 at 5:00 PM | PERMALINK

Had Gore been elected, we'd have been in Iraq anyway, based on Liberman. The PNAC neocon Iraq war hawks were hedging their bets. Nader was the only sane option.

Posted by: osama_been_forgotten on June 25, 2007 at 5:02 PM | PERMALINK

Just more of the same Nader narcissism. "The white luxury vote" - Jesse Jackson, Jr.

Posted by: MaxGowan on June 25, 2007 at 5:05 PM | PERMALINK

. . . And we heard the same lame justifications in '68, when we got Nixon, thanks to the left sitting on their hands or voting for Dick Gregory.

Even Michael Moore figured it out the day after election 2000: "Wait! We've made a terrible mistake!"

Posted by: MaxGowan on June 25, 2007 at 5:08 PM | PERMALINK

As I undestand it, the issue wasn't whether the behavior occurred on school property but that the event where the behavior occurred was a school event; the kid were out of school to attend it. At least in California, this would make the school still liable for the kids well being and presumably responsible for their behavior.

State law regarding the custodial role of schools isn't really relevant to the First Amendment analysis in the case. I'm eager to read the opinion, as I thought it was a fairly straightforward case that should have ended in the student's favor. The event was not mandatory, the even wasn't limited to student and school personell attendees only, and the student wasn't on school property. The student was outside the principal's sphre of influence. Period.

Posted by: Andrew Wyatt on June 25, 2007 at 5:12 PM | PERMALINK

Just more of the same Nader narcissism. "The white luxury vote" - Jesse Jackson, Jr.

I soured on Nader in (iirc) the summer of 2000 when Jesse Jackson Sr interviewed him on his CNN show, and Nader was not only insulting to Jackson, but acted as if he couldn't possibly understand what it was like to run for POTUS. Up until that point I had supported Nader in hopes that his presence in the election would help frame discussions in a progressive direction, and had assumed that he would never be so stupid as to actually allow himself to throw the election to Bush. After seeing his treatment of Jackson, it was evident that he was on an ego quest and didn't give a shit about the country.

Posted by: Disputo on June 25, 2007 at 5:14 PM | PERMALINK

Nader says: "Wear your seat belts."

Posted by: deejaayss on June 25, 2007 at 5:15 PM | PERMALINK

Had Gore been elected, we'd have been in Iraq anyway, based on Liberman. The PNAC neocon Iraq war hawks were hedging their bets. Nader was the only sane option.

Whoa. Come on, now. Just because Bush happily handed over his foreign policy to an insane VP, there's zero reason to suppose Gore would have done the same.

You guys have the right to vote for whomever you want. But wild scenarios like this smack of rationalization.

Posted by: shortstop on June 25, 2007 at 5:21 PM | PERMALINK

Did Clinton's escapades cost the dems more votes than Nader? How many stayed home because of Monica or Nafta? How many million 'democrats' sit out every election? How many millions of non-luxurious African-Americans does Jess failed to get out every election. Get over it. The Nader voters did not stab you in the back.

Posted by: Michael7843853 G-O in 08! on June 25, 2007 at 5:27 PM | PERMALINK

I read each decision in its entirety, and they are all common-sense decisions.

I think it is a mistake to politicize every decision made by the Supreme Court. I don't believe you have to be a conservative to understand that fairness dictates that religious organizations should also be able to appeal for federal funding along with secular organizations. Or that first amendment rights do not allow kids to display "Bong hits for Jesus" banners across from school property.

Again, it's just common sense, and understood by most people. Most people get it that a banner reading "Bong hits for Jesus" is contrary to the message we are trying to teach children, as well as being offensive to Christians.

I guess if the sign had said "Bong hits for Allah", liberals would understand the offensiveness.

Posted by: sportsfan79 on June 25, 2007 at 5:34 PM | PERMALINK

Vincent:

I'm afraid you are wrong. Florida was stolen from Gore in 2000 by the largest voter fraud perpetrated in American history. Thousands of black voters were illegally purged from voter rolls there by ChoicePoint and Jeb Bush working at the direction of Karl Rove. Read Armed Madhouse by Greg Palast for more details. The second largest voter fraud in American history occurred in 2004, when Ohio Secretary of State Ken Blackwell, working at the direction of Karl Rove, used "caging lists", fraudulent exit polls and other dirty tricks to throw the election to Bush. The biggest voter fraud the GOP could come up with against Democrats was in Wisconsin in 2000 in the much-ballyhooed "smokes for votes" mini-scandal when 20 homeless men received packs of cigarettes to vote for Democrats.

Bush is an illegal and illegitimate president - always has been and always will be. The truth is a stubborn thing.

TCD

Posted by: The Conservative Deflator on June 25, 2007 at 5:35 PM | PERMALINK

will, come come: citing the aclu as proof that a decision can't be "conservative" is exactly my point, as you well understand. the aclu is not a marker of "liberalism," it's a marker of "civil libertarianism," a different matter, and the fact that in this case liberals are more inclined towards campaign finance regulation simply means that the aclu is consistently applying its principles.

which in this case are consistent with the outcome conservatives largely desired.

as for the court under fdr, why yes, will, that would be 70 years ago, which by my way of reckoning makes the current court the most precedent-overturning-inclined in a long time, just like i said....

but these are supposed to be conservative judges, is my point, with a reverence for stare decisis; they are not. they are radical right justices, who don't give a good god damn about precedent if they think the precedent was wrongly decided.

Posted by: howard on June 25, 2007 at 5:46 PM | PERMALINK

The Gore supporters knew how bad W. Bush's presidency was going to be. Nader supporters were unable to make this determination. Gore supporters also recognized that Nader voters were not going to vote for Gore to prevent a W. Bush victory. Obviously, the Gore supporters should have voted for Nader to prevent a W. Bush victory. It is the Gore supporters fault that W. Bush was elected president because they would not vote for Nader even if it knowingly meant giving the presidency to W. Bush, like they accuse the Nader voters of doing. The Nader voters thought, perhaps still think, the Gore/Lieberman administration would have been no different than the W. Bush regime. It is this difference between the Gore supporters and the Nader supporters that should have convinced the Gore voters, if they were so prescient about what a W. Bush presidency meant, to vote for Nader.

Gore voters were smart to recognize how bad the W. Bush presidency was going to be, but not smart enough to understand Nader voters were not going to vote for Gore/Lieberman. Had they been that smart, they would have voted for Nader.

Posted by: Brojo on June 25, 2007 at 5:47 PM | PERMALINK

Of course, what deflator meant to say was "facts are stupid things."

Posted by: ron's ghost on June 25, 2007 at 5:47 PM | PERMALINK

Now, am I the only person wondering how a federal case was made over a principle enforcing upon the student body basic rules of conduct? The banner was borderline obscene and gratuitously provocative. Letting it stand would have been grounds for the removal of the school's officer in charge.

If the scope of the First Amendment (particularly the freedom of speech provision) were extended to allow for the policing of basic social intercourse, even when one or more of the parties is affiliated with a Gov. agency, it would render all social interactions actionable. Speech, in particular, must be regulated always in some way, in any context, so that society can operate. If Gov. Agencies (such as the Public School System) were not allowed to regulate speech in this basic way, they would cease to function. School isn't the place to go around making "statements". You can't learn if everyone is making "statements".

Posted by: BC on June 25, 2007 at 5:49 PM | PERMALINK

Brojo,

What?

Posted by: B on June 25, 2007 at 5:51 PM | PERMALINK

Most people get it that a banner reading "Bong hits for Jesus" is contrary to the message we are trying to teach children, as well as being offensive to Christians.

If you weren't such an ignorant git, you'd know that numerous Xian right organizations were supporting the kid's right to free speech (via friend of the court briefs, etc.), because unlike you, they are smart enough to realize that chipping away at free speech rights is also a danger to them.

But then a nazi brown shirt who brags about banning movies at school doesn't think much of free speech to begin with.

Posted by: Disputo on June 25, 2007 at 5:53 PM | PERMALINK

Kevin,

Don't ever tell someone they have a case of the Mondays, you'll get your ass kicked for saying something like that!!! :)

http://www.youtube.com/watch?v=iifHEjUw3tc

Posted by: blondie on June 25, 2007 at 5:54 PM | PERMALINK

Brojo is just indulging in the false equivalency argument that we mostly see from wingnuts.

Posted by: Disputo on June 25, 2007 at 5:55 PM | PERMALINK

Re: Brojo on June 25, 2007 at 5:47 PM

Bong Hits 4 Brojo

Posted by: thersites on June 25, 2007 at 5:57 PM | PERMALINK

I am indulging in the Gore supporters' false equivalency arguement that we mostly read from DLC goons.

Posted by: Brojo on June 25, 2007 at 5:59 PM | PERMALINK

If the scope of the First Amendment (particularly the freedom of speech provision) were extended to allow for the policing of basic social intercourse, even when one or more of the parties is affiliated with a Gov. agency, it would render all social interactions actionable.

I'm glad to see the Ron Paul supporter, BC, out himself as the big gvmt anti-free-speech nazi that he is. Again, what a sorry collection of nutters the RonBots are.

Posted by: Disputo on June 25, 2007 at 6:01 PM | PERMALINK

Hot damn! A thread that has riled up the Naderites *and* the RonBots!

This is gonna be fun!

Posted by: Disputo on June 25, 2007 at 6:05 PM | PERMALINK

One down (the stupid pants decision) and one to go: "Tort-reform" advocate Robert Bork, seeking punitive damages against the Yale Club.

Posted by: Ed Tracey on June 25, 2007 at 6:05 PM | PERMALINK

Anyone who has kids is well familiar with the "look what you made me do" canard that young children try to put over their parents. So when I hear Brojo (Washingtonmonthy's own "Al of the left") claim the same thing, we recognize it for the childishness that it is. What a shocker.

Posted by: MaxGowan on June 25, 2007 at 6:07 PM | PERMALINK

I don't think many Gore supporters knew how bad Bush would be. Hell, I don't even think a lot of repubs realized what a nincompoop extraordinaire Bush was going to be. I thought Bush was going to be a small time crook a la Bush Sr not this megafailure.

Posted by: warren terrah on June 25, 2007 at 6:15 PM | PERMALINK

DLC g...

I did not mean to imply Disputo was one.

Posted by: Brojo on June 25, 2007 at 6:15 PM | PERMALINK

The kid was an idiot anyway.

Had he done "Bong Hits 4 Allah" - he would have been given a Medal of Freedom.

Posted by: osama_been_forgotten on June 25, 2007 at 6:21 PM | PERMALINK

Howard, I have to disagree with your characterization. While certain members (see, eg, Justice Thomas) are highly inclined to overturn precedent, the current Court has on several instances refrained from overturning precedent, even using some bizarrely hair-splitting rationales to do so (see, for example, both of today's first amendment cases). This court seems to be more about making fine distinctions within precedents than it is about overturning them.

Posted by: aphrael on June 25, 2007 at 6:24 PM | PERMALINK

I will try to reason with Disputo one last time.

I actually disagreed with the Faith Based decision. Any funding of any religious group strikes me as violating the letter of the Establishment Clause. Furthermore, this funding is federal, so it even bypassed the issue of the legitimacy of the Incorporation Doctrine (For the record, I'm for the doctrine, but do not believe it to be Constitutional at this time, and I wish they would simply formally pass a unanimous amendment applying the Bill of Rights to the States.)

2nd) Disputo did not counter the substance of my argument, because it's too plainly obviously true.

3rd) I am Paul-Symp, but not outright Pro-Paul and the Paul Thread is one of four now that I have commented upon. I am a reader of Drum's who commented on the Paul thread, not a RonBot, whatever that thing may be.

4th)I hate big government censoring any speech. I even hate small gov. censoring speech. I would never advocate that any opinion, argument, or legitimate piece of art or expression be outlawed.

BUT: Living in society involves social regulation of antisocial behavior.

Quiet in the Library-or you get thrown out of the library

Quiet in the theater-or you get thrown out of the theater

No commotion in the workplace-or you lose your job

No offensive antics in school, or you get punished

No Lewdness in public-or you are (to varying degrees) shunned or (if more serious) detained.

Say, publish, print, whatever you want, the more the better!

But voice your thoughts in forums where they don't hamper basic social functioning.

Posted by: BC on June 25, 2007 at 6:24 PM | PERMALINK

Joel: In Morse v. Frederick, all of the opinions are ridiculous. Alito's, in which he endorses a heretofore unheard-of drug-related-speech exception to the first amendment, is probably the best.

Posted by: aphrael on June 25, 2007 at 6:25 PM | PERMALINK

Great. BC claims:

I hate big government censoring any speech. I even hate small gov. censoring speech. I would never advocate that any opinion, argument, or legitimate piece of art or expression be outlawed.

So how does he square that with his desire to see certain types of speech censored? He redefines speech he doesn't like as "behavior":

Living in society involves social regulation of antisocial behavior.

Scratch a libernuttian and find a Nazi. Works everytime. Makes a great party trick.

Posted by: Disputo on June 25, 2007 at 6:29 PM | PERMALINK

Seriously, Brojo, I've tried to read your post as non-satire and can't make it compute. No offense intended.

Posted by: thersites on June 25, 2007 at 6:35 PM | PERMALINK

Sportsfan79: are you suggesting that schools can punish speech which members of certain religious groups find offensive? That's an astonishing departure from the norms of both 'free speech' and 'free exercise'.

Posted by: aphrael on June 25, 2007 at 6:40 PM | PERMALINK

howard, nobody gives a good goddamn about precedents wrongly decided, and everybody cares deeply about stare decisis when they think a previous decison was correct.

The words "liberal" and "coservative" are meaningless.

Posted by: Will Allen on June 25, 2007 at 6:45 PM | PERMALINK

Ah, Will "you love me tomorrow" Allen still pushing the "everyone is equally evil so you might as well be Republican" theory of politics.

Posted by: Disputo on June 25, 2007 at 7:00 PM | PERMALINK

Ha! As if you have any idea what the International Man of Mystery's politics are!

Posted by: shortstop on June 25, 2007 at 7:02 PM | PERMALINK

I've tried to read your post as non-satire and can't make it compute

I thought you were offering me bong hits for my logic.

If what the Gore supporters say is true, that Nader voters gave the election to Bush, then it is also true for them because Gore supporters knew how bad W. Bush was going to be. This knowledge about W. Bush, in 2000, means that Gore supporters should have voted for Nader to prevent W. Bush from being elected. The Gore supporters knew how bad a W. Bush prsesidency was going to be and they should have known the Nader supporters were never going to vote for Gore/Lieberman, therefore, to prevent W. Bush from winning, the Gore supporters should have voted for Nader. This is basically the same arguement Gore supporters make to Nader supporters. The difference is that the Gore supporters knew how bad a president W. Bush was going to be and the Nader supporters did not.

Nader supporters were not as prescient as Gore supporters. Nader supporters could not foresee 9/11 and the war in Iraq, and so could not be persuaded to vote against W. Bush. Gore supporters should have convined themselves that it was more important for W. Bush to lose than for Gore to win and they all should have voted for Nader in 2000, if they truly believed W. Bush should not become president.

Posted by: Brojo on June 25, 2007 at 7:06 PM | PERMALINK
Yeah, the ACLU, which filed a brief in support of the ruling in the McCain-Feingold decision, is composed of a bunch of conservatives.

That a decision is conservative does not mean that everyone who agrees with the result is a conservative, and, at any rate, the ACLU brief was not filed "in support of the ruling in the McCain-Feingold case".

Posted by: cmdicely on June 25, 2007 at 7:06 PM | PERMALINK

"Or that first amendment rights do not allow kids to display 'Bong hits for Jesus' banners across from school property. Again, it's just common sense"

Actually, no, it isn't, of course, since "common sense" would tell you that displaying just about any kind of banner on a public street is protected by the First Amendment, which is why the decision was so convoluted as the majority twisted itself into knots to pretend that there was some rationale for the decision.

Were the kid on school grounds or posting this on the school bulletin board, you'd have a "common sense" point. He wasn't and you don't.

Posted by: PaulB on June 25, 2007 at 7:09 PM | PERMALINK

Alito's, in which he endorses a heretofore unheard-of drug-related-speech exception to the first amendment, is probably the best.

Meh. At a glance, the Alito/Kennedy concurrence would actually be fairly close to my own take on the affair: it's proper for a school to censor a public sign or banner on school property or during a school event if it's--at best--absurdist, distracting, and provocative or--at worst--advocating illegal activity. And Alito carves out a clear statement that this power cannot be used as a club to silence debate on drug policy within a school.

However, I'm still not convinced the kid was ever within the principal's power to censor based on the circumstances of the event. The majority's cavalier dismissal of the issue notwithstanding. How far away from a principal does a student have to be standing on a day off in a mixed crowd for him to be out of the principal's sphere of control? I don't think this is a blow to the First Amendment per se so much as it's a blow to the independence of students and a tightening of the public school system over every moment of their lives.

Posted by: Andrew Wyatt on June 25, 2007 at 7:10 PM | PERMALINK

I thought you were offering me bong hits for my logic.

Think of it as an accusation. ;)

Posted by: thersites on June 25, 2007 at 7:12 PM | PERMALINK

Yes, yes cmdicely, and, really, the ACLU's position is quite frequently thought to be "conservative".

You are as pedantically correct as ever, of course, in noting that the ACLU did not write a brief in support of the decision. I should have simply noted that the ACLU welcomed this decision, as opposed to what the dissent would have produced, had it been in the majority.

Posted by: Will Allen on June 25, 2007 at 7:24 PM | PERMALINK

Disputo, why don't you post some more asides which you believe to be irrelevant, and then criticize people for addressing them?

Posted by: Will Allen on June 25, 2007 at 7:32 PM | PERMALINK

Will Allen, why don't you pull up your pants?

Posted by: Disputo on June 25, 2007 at 7:47 PM | PERMALINK

This knowledge about W. Bush, in 2000, means that Gore supporters should have voted for Nader to prevent W. Bush from being elected.

Back in the real world, however....

Posted by: Stefan on June 25, 2007 at 7:47 PM | PERMALINK
Yes, yes cmdicely, and, really, the ACLU's position is quite frequently thought to be "conservative".

If there was a majority decision in which the Court followed closely the ACLU's rationale, then whether the ACLU was or was not reasonably "conservative", either in general or in the specific position on the case, might be relevant.

That the ACLU filed a brief urging a similar result, however, is however, a very different thing. Rules of law are in reasoning, not just results.

Posted by: cmdicely on June 25, 2007 at 7:51 PM | PERMALINK

You must be on your 43rd bong hit, Brojo, with that level of logic.

Posted by: MaxGowan on June 25, 2007 at 7:52 PM | PERMALINK

School isn't the place to go around making "statements". You can't learn if everyone is making "statements".

He wasn't in school, you idiot. He was on a public street.

Assume the kid had been holding up an "Impeach Bush" banner at a public event. Would the principal still have the power to punish him?

Posted by: Stefan on June 25, 2007 at 7:54 PM | PERMALINK

Good question, Stefan - and one we can expect to get tested. I shudder at that possible ruling. But do note he was on school time, not his own time. And the promotion of illegal drugs was a centerpiece of this ruling (I don't necessarily agree with it). The school was in a damned-if-you-do-or don't situation: To not suspend would be as much asking for it as doing so. In his dissent, Stevens almost directly quoted George Orwell on this (well, maybe he did or should have), who once wrote (to the effect), "Freedom of speech is the right to tell people what they don't want to hear." Again, in no way to defend the 5-4 majority (we'll be seeing a lot more of those, BTW, and thanks again, Ralph), but tying up (1) on school time; (2) promotion of illegal drugs . . . well, we'll just have to see how they justify limiting political speech, won't we?

Posted by: MaxGowan on June 25, 2007 at 8:03 PM | PERMALINK

Good question, Stefan - and one we can expect to get tested. I shudder at that possible ruling. But do note he was on school time, not his own time

Actually, he wasn't. The students had the day off due to the Olympic torch event and parade, and attendance wasn't mandatory. The event was open to the public and not on school property. The only reason the banner became an issue was because it was unfurled across the street from the school and within eyeshot of the principal. If the kid had been a mile down the road with his banner--as he had the right to be on his day off--would it have been within the principal's power to take it away? What about if he was standing in front of his own house?

Posted by: Andrew Wyatt on June 25, 2007 at 8:13 PM | PERMALINK

Andrew, thanks, I missed that point. Uh oh.... Anyone want to place bets how the Supreme Court would vote in the scenarios that Stephan and Andrew have stated? I shudder.

Posted by: MaxGowan on June 25, 2007 at 8:19 PM | PERMALINK

"The school was in a damned-if-you-do-or don't situation"

Why? The kid was on his own time and on public property. "The school" is not required to monitor every student on their own time when they're not on school property. I would argue that the school was "damned if it did" but would suffer no ill consequences if it did nothing, even more true when you consider the ambiguity of the banner. "Bong hits for Jesus" is hardly unequivocal "promotion of illegal drugs."

Posted by: PaulB on June 25, 2007 at 8:24 PM | PERMALINK

Max:

IIRC, the student's brief to the SCOTUS had a lot of detail on the circumstances of the day in question. It's just a shame that the Court didn't address the question of the principal's authority at all.

I'm as liberal as they come, but I think I come down fairly conservatively on this issue if we were talking about a more official school event on school ground. Were I an administrator I'm not sure I would allow any "issue" signs or banners at most school events. Is any open debate going to occur during a pep rally if you allow, say, pro-choice and pro-life advocates to bring signs to the event? You're just going to get distractions that have nothing to do with the event's purpose. Better to just say: "No signs or banners not related to school spirit or crushing our athletic rivals." On the other hand, I could see setting up a bulletin board that features a rotating free space for students to air their opinions on controversial topics, or even a daily two-minute anything-goes soapbox over the PA assigned by lottery to any applicants. Administrators should have the common sense to promote student speech in venues where it's not going to be disruptive.

All this is moot, however, to the Morse case, in my opinion. The principal overstepped her bounds because she was worried about negative publicity for the school on television. Tough cookies. No reason to let her reach into a public space and discipline a student who isn't even in school.

Posted by: Andrew Wyat on June 25, 2007 at 8:31 PM | PERMALINK

You're right, Paul B- see my previous correction. It was not on school time, so the principal was out of line. (I think of all places, I heard this on NPR; either way, I stand corrected.)
And on second thought, the principal would probably not have suspended him had it been an "Impeach Bush", because she would have agreed with the sentiment! (Seriously, when are the MSM pollsters going to start asking people about impeachment?)

Posted by: MaxGowan on June 25, 2007 at 8:31 PM | PERMALINK

Sportsfan79: are you suggesting that schools can punish speech which members of certain religious groups find offensive? That's an astonishing departure from the norms of both 'free speech' and 'free exercise'.

No. The fact that it reinforces common courtesy and good manners was just another pleasant by-product of the ruling, not the critical legal element.

The critical element was that it was a school function, and violated the school's no-drug policy.

Posted by: sportsfan79 on June 25, 2007 at 8:34 PM | PERMALINK

Max:

We can keep going with your hypotheticals, however. Let's flip the conservative / liberal axis around and consider how Morse will apply in other situations.

Let's say there is an art fair going on in front of a high school on a Saturday. It's nominally a school event, in that the school's art students are selling their wares, and school resources are being utilized (furniture, materials for signs and decorations, etc.) A student--not an art student, but still enrolled at the school--is standing across the street and holding up a sign that says: "Drug Adducts Must Die." (An ambiguous statement that may advocate illegal activities.)

Can the principal--who happens to be there to help manage the fair--run across the street and take away the student's sign, because it might be "disruptive"? The majority's decision would seem to imply as much.

Posted by: Andrew Wyatt on June 25, 2007 at 8:40 PM | PERMALINK

Disputo at 5:53:

But then a nazi brown shirt who brags about banning movies at school doesn't think much of free speech to begin with.

The fact that you're so upset about it reassures me that I did the right thing, Disputo.

Don't worry, we agreed on different environmental documentary for the class - just not An Inconvenient Truth.

There are plenty of fine documentaries that focus on conservationism, without beating the kids over the head with the politics of the teachers and the teachers unions.

Posted by: sportsfan79 on June 25, 2007 at 8:47 PM | PERMALINK

Andrew - I think you're right on this one, too. By this ruling, I think the principal is granted far more power than many principals are capable of using (I work with 59 principals, by the way). The big one for me is: where is the line? "Impeach Bush"? "Principal Smith is an evil lizzard"? Might this ruling open up a lot more of this?

Posted by: MaxGowan on June 25, 2007 at 9:01 PM | PERMALINK

Yup. It looks like Ed Brayton at Dispatches from the Culture Wars zeroes in on the broader point as usual: This kind of content-based censorship is dangerous, and Alito's "non-political statements only" exception is a fig leaf, and a nonsensical one at that.

http://scienceblogs.com/dispatches/2007/06/supreme_court_dday.php

Posted by: Andrew Wyatt on June 25, 2007 at 9:07 PM | PERMALINK


I wrote:

"Living in society involves social regulation of antisocial behavior."

Disputo replies:


So how does he square that with his desire to see certain types of speech censored? He redefines speech he doesn't like as "behavior"


Here are the examples of specific controls of behavior I offered:

Quiet in the Library-or you get thrown out of the library

Quiet in the theater-or you get thrown out of the theater

No commotion in the workplace-or you lose your job

No offensive antics in school, or you get punished

No Lewdness in public-or you are (to varying degrees) shunned or (if more serious) detained.

Say, publish, print, whatever you want, the more the better!

But voice your thoughts in forums where they don't hamper basic social functioning.

Apparently according to Disputo, insisting that libraries have the right to demand quiet from their patrons is "fascist". Note that none of these, save perhaps one, involves any direct action from the government. Also, note that none of these examples alludes to the content of speech, only the avenue and context of its airing. There is thus, no grounds for his allusion to "speech he doesn't like". It has nothing to do with whether or not I like what you say. The only criterion I presented was "does it impede basic essential social institutions from doing their job?" Disputo does not address this criteria.

What Disputo wants is for the State to declare total authority overin every niche of society and dispense with the integrity of all independent social institutions and controls-formal and informal-because these institutions inhibit the expression of radical freedom as he defines it. He sees the State as the guardian of this freedom and society as its nemesis, unaware that all he is advocating is enforcing his singular view of freedom, not just over everyone's life, but over the entirety of everyone's life, in totalitarian fashion. Of course, what he effectively endorses is incidental to what I believe to be his real goal: to be a jackass.

Disputo is unwilling to engage anyone's actual points, does not argue honestly, and limits his contributions to bizarre non-existent allusions and name-calling. He's here, in short, to be a jerk and waste the time of people such as myself, who are stupid enough to have devoted a second of my life to answering his charges, in addition to whatever other agenda he might have, in which I am totally uninterested.

Posted by: BC on June 25, 2007 at 9:31 PM | PERMALINK
Why? The kid was on his own time and on public property.

While certainly that's the interpretation he urges, all of the court decisions (the trial and Supreme Court decisions for the district, and the Court of Appeals decisions on the other side) viewed the issue of one of the power of school officials over students during off-campus, school-authorized activities.

Posted by: cmdicely on June 25, 2007 at 9:32 PM | PERMALINK

Dear Stephan,

I am not an idiot. "School" has two meanings, the place an the proceedings, regardless of place.

If he was in school, and it was a school event, then yes; it does not matter what the content of the sign was. It was a gratuitously offensive gesture that interfered with the business of school.

If however, he was not at school, and not participating, the situation gets murky. How does one say that a student is "not in school" just interfering with a school event in a school in which he just happens to be enrolled? Could he not be simply considered late in addition to disruptive?

Obviously if the school had no jurisdiction, it had no jurisdiction, and the principal can't do a damn thing. If it were an adult or a student from another school, then yes, the principal was way out of line.

Posted by: BC on June 25, 2007 at 9:43 PM | PERMALINK

Mark D.: Stare decisis, schmare decisis.

Is Stare Decision more important than the Consitution? Stare Decisis is mentioned nowhere in the Constitution. The SC made these 4 decisions by following what actually is in the Constitution.

One might characterize the comments lauding Stare Decisis as amounting to Constitution Shmontitution.

Posted by: ex-liberal on June 25, 2007 at 9:50 PM | PERMALINK
The critical element was that it was a school function, and violated the school's no-drug policy.

It didn't violate any "no-drug" policy.

It might have violated a "no saying anything someone might interpret as advocating use of drugs" policy, but that's a very different thing.

The 9th Circuit held—IMO, correctly based on precedent and the content of the Constitution itself, though clearly at odds with the current Supreme Court's view of the matter:

Public schools are instrumentalities of government, and government is not entitled to suppress speech that undermines whatever missions it defines for itself. What schools are entitled to do, as Fraser makes clear, is suppress speech that disrupts the good order necessary to conduct their educational function. No educational function was disrupted by the banner displayed during the Coca-Cola sponsored Olympics event. One can hypothesize off-campus events for which the students might be released that would be educational and curricular in nature and would be disrupted by speech such as Frederick's. For example, on a school field trip as part of the social studies curriculum to observe a court in session, it might be the case that the school could ban the wearing of Cohen's famous jacket. But a Coca Cola promotion as the Olympic torch passed by on a public street was not such an event.
Posted by: cmdicely on June 25, 2007 at 9:51 PM | PERMALINK

The SC made these 4 decisions by following what actually is in the Constitution.

Like this matters to you! I have seen you in this very forum excuse Bush for circumventing the Cconstitution because you are a pissin-down-your-leg, chickenshit, scared witless by some whacky fundamentalists in caves with a prayer rug, a koran and a few AK's. Why do you give them such power? Why do you want the terrorists to win? When you embrace the fear, that is exactly what you do.

Posted by: Isle of Lucy on June 26, 2007 at 12:54 AM | PERMALINK

Will Allen said: "howard, nobody gives a good goddamn about precedents wrongly decided, and everybody cares deeply about stare decisis when they think a previous decison was correct.

"The words "liberal" and "coservative" are meaningless."

Will was half right. I'm pretty sure that the word "coservative" is indeed meaningless.

Posted by: howie on June 26, 2007 at 6:15 AM | PERMALINK

BC wets his pants:

Disputo is unwilling to engage anyone's actual points, does not argue honestly, and limits his contributions to bizarre non-existent allusions and name-calling. He's here, in short, to be a jerk and waste the time of people such as myself, who are stupid enough to have devoted a second of my life to answering his charges, in addition to whatever other agenda he might have, in which I am totally uninterested.

You got pretty big britches for a lying jackass who has only been here for a couple days since you appeared along with the other wacko RonBots. All the regulars here know exactly where I stand. Your constant lies and avoidance of my points is obvious for everyone to see. You're not fooling anyone.

I'll say it one more time, you big gvmt nazi dumbshit -- you're all about the gvmt regulating speech (and anything else you don't deem sufficiently good enough to be protected by your pseudo-libertarian crypto-fascist values).

The principal of the *public* school is a gvmt official, not a private proprietor. What she was censoring was speech, not behavior, unless you are dumb enough to insist that she would have also torn down a banner that said, "Go Olympic Torch! and given the kid a 10 day suspension (an argument so ludicrous that the school didn't even bother trying to make it in court.)

Really, kid, you best lurk for awhile and learn something before you open you dumbass yap and again expose yourself to public ridicule.

Posted by: Disputo on June 26, 2007 at 10:29 AM | PERMALINK

The fact that you're so upset about it reassures me that I did the right thing, Disputo.

Ah, the final argument of the man with no values.

Brown is a good color for you because it doesn't require alot of washing.

Posted by: Disputo on June 26, 2007 at 10:34 AM | PERMALINK

And the promotion of illegal drugs was a centerpiece of this ruling

And of course the kid was also promoting Jesus (as much as he was promoting illegal drug use), which is why several Xian right groups supported him on first amendment grounds.

Posted by: Disputo on June 26, 2007 at 10:39 AM | PERMALINK

it is hard to point to a single major ruling this term that could or would give succor to legal liberals or even jurisprudential moderates.

Which is why I'm haunted by an offhand comment from George Will, to the effect that without Ralph Nader's 2000 vanity campaign, Al Gore would probably be finishing up his second term.

Doesn't mean the world as a whole would look all that much different. But it's a fair bet that the Supreme Court would.

Posted by: Peter Principle on June 26, 2007 at 11:56 AM | PERMALINK

A couple of things:

Some of the discussion here infers that the sign wasn't political by asking what would happen if it read "Impeach Bush". I thought I heard that the political nature of the sign was the issue, though I can't find a story online to back that. I found that ridiculous simply because "Bong Hits 4 Jesus" (still makes me laugh) doesn't actually represent any real movement. It's more of an absurdist attention-getter, a fact the 9th Circuit Court of Appeals mentioned in their ruling. The SC ruling, on the other hand, sounds like the kind of gut ruling advocated by SportsFan above: it doesn't sound proper, so its not, regardless of the law.

As for the point about whether it was a school function or not, schools have already established the precedent that activities that happen away from school can be held against students at school (e.g.,cheerleaders getting kicked off team due to alcohol-related arrest on the weekend, students being punished for personal MySpace pages) so this wouldn't seem to be much of a stretch. I don't agree with it, yet I agree with whoever above said that the principal was in a no-win situation. Had she not acted, she would certainly have been in trouble with her supervisors.

As for penance for the student, he should take three tokes and say five Hail Marys.

Posted by: yocoolz on June 26, 2007 at 12:31 PM | PERMALINK

Yes, yocoolz. I was the one who pointed to the principal's no-win situation. Working with 59 of them, I see this all the time. I don't really agree with the Court ruling, but it's a closer call than some folks here want to admit. On the one hand, the kid was just asking for it; on the other hand, to paraphrase Orwell, freedom of speech is the right to tell people what they don't want to hear. Incidentally, the kid himself called it a deliberately absurdist move, so you are right on that call.

Thanks again, Ralph.

OK, OK, one last note: Look how by screwing first Humphrey in '68 (giving Nixon four appointees, including Justice Bill), and then Gore in '00 (giving Bush two appointees so far), how what passes for "the left" has shaped court decisions!

Posted by: MaxGowan on June 26, 2007 at 2:58 PM | PERMALINK

punished for personal MySpace pages

That was my understanding, too. I do not understand how schools have the power to interfere with students' private lives.

Posted by: Brojo on June 26, 2007 at 6:28 PM | PERMALINK

[That students are being punished for personal MySpace pages] was my understanding, too. I do not understand how schools have the power to interfere with students' private lives.

The examples that I recall didn't involve students being punished for myspaces pages, per se. They involved students who had signed no drug/alcohol pledges as a prereq for participating in extracurricular school activities having pics posted on myspace of them drinking and/or doing drugs and subsequently being banned from extracurricular participation.

IOW, they weren't being punished for their speech on myspace; they were having privileges withdrawn for the (illegal) behavior that they had agreed not to engage in and that was documented on myspace.

Posted by: Disputo on June 26, 2007 at 6:54 PM | PERMALINK

Disputo, the Fecal Singularity, lets it all hang out:

I'll say it one more time, you big gvmt nazi dumbshit -- you're all about the gvmt regulating speech (and anything else you don't deem sufficiently good enough to be protected by your pseudo-libertarian crypto-fascist values).

I'm sure he'll keep me posted.

Posted by: BC on June 27, 2007 at 10:18 AM | PERMALINK




 

 

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