Category Archives: Op-Eds

SCOTUS Should Clarify Tinker in Favor of Free Speech, Not School Control

In 1969, the US Supreme Court held, in Tinker v. Des Moines Independent Community School District, that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”   Schools may only prohibit, censor, or punish student speech which would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

But what about speech that occurs outside the schoolhouse gate, and outside school hours? The Court is about to take on that issue in Mahanoy Area School District v. B.L.

In 2017, 14-year-old high school freshman Brandi Levy found herself suspended from her school’s cheerleading squad for a year over an intemperate Snapchat post published from off campus and over the weekend.

“F*** school f*** softball f*** cheer f*** everything,” Levy wrote, emphasizing her upset at not making the varsity cheer squad with a photo of herself and a friend raising their middle fingers.

Levy sued over the suspension and won.  Four years later, she studies accounting in college as she awaits a US Supreme Court ruling on her former school’s appeal.

The school district claims the power to regulate and punish “substantially disruptive” student speech, even when the student speaks off campus and outside school hours.

Brandi Levy says the district’s power over student speech ends at the campus property line and the end of the school day.

Even leaving aside the question of whether Levy’s rant was “substantially disruptive” (as a student, I heard much worse on campus and during school hours without any accompanying “disruptions”), it’s important to draw a bright line here: She’s right, they’re wrong, and it isn’t a close call.

Most state laws mandate attendance at government-operated schools for most minors (with some exceptions for private or home schooling).

The government gets substantial control of our kids for several hours a day, five days a week, not counting homework and extracurricular activities.

That substantial control must end at the schoolhouse door and at the final bell.

Apart from true threats of violence, which are actionable whether the perpetrator is a student or not,  what our kids say, how they say it, and who they say it to when they’re not at school is simply none of the school’s business.

In the age of social media, it’s more important than ever for the Supreme Court to protect students’ free speech rights off campus as well as on.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

Police Violence: The Standards Are Topsy-Turvy

Responding to the conviction of Minneapolis police officer Derek Chauvin for the murder of George Floyd, Libertarian National Committee Chair Joe Bishop-Henchman gets it exactly right: “Those who are given authority over others ought to be held to an even higher standard than what is expected of the general public.”

That seems obvious, but when it comes to police officers, the American justice system routinely gets it backward.

I’m not just talking about “qualified immunity,” a pernicious judicial doctrine that sets a higher bar for holding government employees accountable for criminal acts. That’s part of it, but not even close to the whole story.

All too often, police officers accused of unjustified killings successfully but unreasonably cite fear for their own lives as a defense. Chauvin’s unsuccessful invocation of George Floyd’s “superhuman strength” is the exception, not the rule.

Mesa, Arizona police officer Philip Mitchell Braisford executed Daniel Shaver without charge or trial as Shaver crawled — unarmed, following Braisford’s orders, and begging for his life — on a hotel hallway floor.  Braisford was acquitted after claiming he thought Shaver was reaching for a gun — then allowed to rejoin the police force for just long enough to retire, at the age of 28, with a guaranteed pension of $31,000 per year for life.

St. Anthony, Minnesota police officer Jeronimo Yanez executed motorist Philando Castile during a traffic stop, firing seven shots into a car which also held Castile’s girlfriend and her four-year-old daughter. Castile’s crime? Informing Yanez that he was licensed to carry a firearm and that there was one in the car. Yanez, like Shaver, was acquitted after claiming fear for his own life.

Was Braisford’s fear reasonable?  Was Yanez’s?

Consider:

In 2019, there were 16,425 reported homicides in the US.

Of those, the Washington Post reports, 999 — 6%  — were police shootings, even though cops constitute only about 1/5th of 1% of the population.

To phrase it differently, a police officer was about 30 times as likely as the average American to commit a homicide in 2019. And a police officer on duty is almost certainly carrying a firearm.

Would civilians therefore be justified, based on reasonable fear for their own lives, in gunning down cops on sight, or at least under circumstances similar to the killings of Shaver and Castile?

I certainly don’t recommend it. Nor do I think it likely that a judge or jury would buy it as a defense.

But, unlike police officers, most civilians haven’t attended police academies, received extensive training in appropriate and acceptable uses of force, and been offered badges, government paychecks, and broad authorities over us mere civilians based on successfully completing that training.

In what universe, therefore, should cops be considered LESS responsible for their actions than the rest of us?

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

How “Representative” is US Democracy?

American politicians love to boast of their nation’s status as the world’s premier “representative democracy,” and to lecture other, presumably less enlightened, countries on the importance of representative political institutions. Going by the numbers (which admittedly don’t tell the whole story), there’s good reason to question whether such preening is justified. Among the world’s states, the United States ranks third in population, but 25th in the number of members comprising its national legislative bodies.

The US has more than a thousand times the population of Iceland,  but our House and Senate combined have fewer than ten times as many members as its single-house legislature, the Althing. Icelanders get one representative for every 5,037 inhabitants. Americans get one US Representative or US Senator for every 596,060 inhabitants.

In terms of the ratio of legislators to population, only the European Union and India are “less representative.” Yes, that’s right. The US comes in behind such exemplars of “representative democracy” as China, North Korea,  Russia, Syria, Cuba, and Egypt when it comes to representation.

Of course, it’s reasonable to question the “democracy” part of the “representative democracy” equation for some of those countries compared to the US.  After all, the US would never use authoritarian measures like gerrymandering and restrictive ballot access laws to ensure that only two parties, or even one, have a shot at winning a seat, right? Oh, wait …

The size of the US Senate is fixed in the Constitution at two Senators per state. But the US House of Representatives is constitutionally only limited to a maximum of one Representative per 30,000 inhabitants. A House based on that number would have 11,000 members.

Why, in its wisdom, has Congress fixed the number of US Representatives at 435 since 1929?

The supposed reason is that a larger legislature has a harder time getting things done. Yet the 24 countries besting the US on raw legislator numbers seem to manage. And even if the excuse was true, it might well be a feature, not a bug.

The real reason is, of course, greed for power. No member of Congress wants to dilute the weight of his or her own vote from one in 435 to one in, say, a thousand. On the other hand, no member of Congress wants to risk being downsized back to private life if that number is reduced.

If we want to really do “representative democracy” instead of just posturing and play-acting, a good starting point would be for Congress to increase the size of the House to 1,000 members, and for the states to end the foul practices of gerrymandering and giving special ballot access privileges to two anointed “major” parties.

Or we could stop pretending our “democracy” is more “representative” than Zimbabwe’s or Nicaragua’s.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY