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Thursday, September 14, 2006
James J. Kilpatrick :: Townhall.com Columnist
Flaunting the First Amendment
by James J. Kilpatrick
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WASHINGTON -- A long time ago, in a place far away, a free-spirited schoolboy attempted to exercise his rights of free speech. Informed that he had none, and rudely rebuffed for his effort, the impetuous lad grew up to become a newspaperman.

Four years ago, in a different place far away, another smart-aleck also stood upon his First Amendment rights. He had better luck, and now he's in the U.S. Supreme Court, ready to defend his glorious victory against a formidable foe.

As you will have surmised, I myself was the fearless 14-year-old of 1934. Yes! Jack Kilpatrick, boy editor! He was editor of the Chief Justice, the sometime student newspaper at Taft Junior High School in Oklahoma City. I will return to his travails.

First we must attend to the fate visited upon another teenager, Joseph Frederick, in Juneau, Alaska, in January 2002. That was when the Olympic torch was being carried o'er distant lands to its final resting place beside the wine-dark sea. That was also when this courageous youth attempted, heroically, to raise a 20-foot banner with a curious text. The pennant read, mystically, cryptically, enigmatically:

BONG HITS 4 JESUS

What could it mean? Elderly spectators were in wonder. Principal Deborah Morse knew full well. In the curious argot of the underworld, it was a salute to marijuana. Yes! A celebration of pot! Of hashish! Cannabis! Young people are known to get a bhang out of it. The banner would lead the children of Juneau down a primrose path to degradation. Ms. Morse rushed across the street and snatched the evil banner from his hands. Then she trampled it underfoot!

The scene became unseemly. She ordered Joseph to her office. In defiance, he refused to come. She suspended him for five days. When he quoted Thomas Jefferson on free speech, Ms. Morse made it 10 days: He had violated her code of acceptable behavior. He appealed to Superintendent Gary Bader. No luck there. The school board also ruled that principals must be upheld.

Thwarted at every turn, young Frederick sued for money damages and a summary judgment that his rights of free speech had been invaded. U.S. District Judge John W. Sedwick sided with the principal. The wounded youth appealed. A three-judge panel of the 9th Circuit, speaking through Judge Andrew J. Kleinfeld, emphatically reversed and sent the case back for trial. From that order Ms. Morse and the Juneau board have appealed to the Supremes. We will know next month, when the high court opens its October term, if the drama will resume.

You will accurately infer that this case strikes me as much ado about mighty little. Young Frederick, suffering from an overblown view of his own importance, forgot his manners. Ms. Morse, needlessly throwing her weight around, forgot the rule that instructs grown-ups not to take themselves too damn seriously. The three judges of the 9th Circuit should have affirmed Judge Sedwick and then patted Frederick on his back for being a red-blooded American boy.

The Supreme Court may take this case for two reasons: (1) The school board's chief appellate counsel is Kenneth W. Starr, a major league player who served not long ago as a federal circuit judge and later as U.S. solicitor general. It's a reasonable assumption that Starr would not have taken the case unless he thought it had real merit. And then (2), this court is not notably sympathetic to the rights of smart-aleck kids. We'll see.

Starr may exaggerate when he says in his petition that Judge Kleinfeld's opinion in the 9th Circuit has "triggered deep concern among school boards nationwide and profoundly upset settled understandings of First Amendment principles," but he argues persuasively that the lower court erred especially in holding that Principal Morse is not entitled to qualified immunity for her role in the dreadful imbroglio. She may have outrun her writ, but not by much. She meant well.

I hope the high court takes the Juneau case and affirms 9-0. Seventy years ago, I too was a youthful rebel, a precocious baby Hearst, another Lincoln Steffens just waiting to emerge. I remember when I was summoned to the principal's office and put unpleasantly on terms: I could suspend publication of the extracurricular Weekly Keyhole and destroy all existing copies, or I could give up my editorship of the school's official student paper.

These were hard terms. My mother made me take them. I shoulda had help from the ACLU.

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About The Author

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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I'd like to know
who is behind this kid.

Ego inflated school official
A very large number of school administratos seem to feel that their own views of propriety somehow trump the rights of admittedly callow and naive youths to express themselves. As a question of principle, the school principal should lose the case and be forced to pay all costs from her own pocket; there is NO place for immunity from responsibility in a civilized society. ON the other side of the question, it is too bad that it comes to a Supreme Court case to get the kid to learn a little propriety.

Depends
If the child was at this event through school sponsorship the principal was well within her rights and duties as an administrator to disipline a child that was advocating illegal behavior. If this was a public event that the child attended as a ward of his parents then she's out of line.

Horrors
What do you mean, "Much ado about nothing?" Young Frederick should have been flogged with a cat-o-nine-tails for violating the sacred tenet of separation of church and state. The very thought of Jesus is abhorrent to the liberal establishment.

Nostalgia isn't as good as it used to be
For some reason, your story reminds me of Phil Och's
Love Me, I'm a Liberal:

Yes, once I was young and impulsive
I wore every conceivable pin
Even went to socialist meetings
Learned all the old union hymns

Ah, but I've grown older and wiser
and that's why I'm turning you in
- So love me, love me, love me,

I'm a liberal!

Bong Hits
So, James, was young Joseph Frederick for Jesus or against Jesus? As Rick B. pointed out, Pro-Jesus is illegal in government-run public schools.

If the Sign read "BONG HITS 4 MOHAMMAD", would there be a controversy? "BONG HITS 4 BUDDA"?

The legal argument of the opposing side seem to be missing from the article. I understand plaintiff Frederick's point is the first amendment, but what's the defendant's legal argument?

The article indicates that the kid lost at trial, then appealed to the infamous 9th Circuit, which reversed and remanded (I assume).

Ken Starr then says that the lower (trial) court was wrong in granting Principal Morse "qualified immunity". Did I miss something? The question of qualified immunity wasn't stated anywhere in the article until the 9th paragraph.

James Kilpatrick then hope that the SCOTUS affirms 9 - 0. Affirms the trial court or the 9th Circuit, James? I can sort of infer that a SCOTUS affirmation would mean agreement with the 9th Circuit, but Kilpatrick's against the 9th Circuit's opinion (I think).

Kilpatrick has written, IMO, one of the most confusing and incomplete articles ever posted to TH.com. He certainly should learn a lot more about writing articles regarding American jurisprudence.




This isn't as concise as I would like
Remember Point - Counterpoint. Looks like Mr. Kilpatrick's game has lost a few steps.

1) What was the nature of the celebration?

2) Was this a school sponsored function?

3) Were the students contained within a designated area to represent their local school?

4) Were there other schools involved in this celebration?

5) What is the school policy regarding presentations of Christ, and cannabis upon school property?

6) Are parents permitted to hold signs referencing scripture at football games?

7) Are "Doobie Brothers" songs permitted at an oldies dance in the school gymnasium?

8) Can the term "roach" be uttered within the school beyond the confines of the kitchen or the entymology department?

9) Did the 9th Circuit Court of Appeals have their morning coffee before hearing the appeal? How about their afternoon doobie?

10) Is their a correlation between sleep deprivation and reduction in cognitive skills of Education Administrators?

Too many unanswered questions.

John-of-Gilknockie . . .
I'm LOL, John! Good, humerous post which is relatively rare on the TH.com board.

I think you're correct when you said Kilpatrick's game has lost a few steps. The legs are the first to go, John . . .

"HUMOROUS", not "humerous" . . .
sorry, guys.

The First Amendment
The anarchists and subversives who want to tear our country apart are doing it muchly through reliance on the First Amendment.

Kilpatrick = public school ignorant
Please look up the word "flaunt."

To quote Inigo Montoya: "I am not sure it means what you think it means."

Perhaps you meant "Flouting the First Amendment."

Most columnists have a dictionary on the bookshelf behind their desk.

Use it.

Grammar correction
Mr. Kilpatrick:

Because you spent so much time and so many columns preaching to everyone about the proper use of the English language, and roundly criticizing those who (in your opinion) do not use it propery, rather than focussing on the political topics of the day, I have appointed myself YOUR proofreader. It is my mission to point out every single error in every single column of yours. Maybe then you'll leave everyone else the heck alone. Today's error, quoted from your column:

"Ms. Morse, needlessly throwing her weight around, forgot the rule that instructs grown-ups not to take themselves too da_mn seriously."

"[D]amn" (if the censors will let me get away with saying it) is a verb, and thus makes no sense in the context. Most people with a brain would have used the word "damned". Though normally an adjective, "damned" is also used as an adverb, making it appropriate for modification of another adverb.

Hoisted on your own petty little nitpicky petard again!

(Oh, one more thing. How come the columnists can get away with saying it and we can't?)

Regards,
Trevor
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