Free speech is loser where religious expression is concerned

John Leo

7/17/2006 12:01:00 AM - John Leo

Brittany McComb's microphone went dead at her high school commencement because school officials thought she was talking too much about religion. This was during her valedictory speech last month at Foothill High School in Henderson, Nev. The crowd of some 400 jeered for several minutes after her speech was cut off, but the American Civil Liberties Union of Nevada thought school officials had made the right call. No surprise there. If the issue is freedom of speech vs. fear that a commencement speaker will imperil church-state separation, the ACLU will come out against free speech every time.

Officials of the Clark County school district read the text of graduation talks in advance and edit out comments they consider inappropriate. In this case, administrators deleted all three biblical references, several references to "the Lord" and the one mention of Christ. But McComb rebelled and said what she wanted to say. She thinks commencement speakers have the right to thank anyone they want to. "Other valedictorians thank their parents. I wanted to thank my lord and savior," she said.

John Whitehead of the Rutherford Institute, which will represent McComb in a suit against the district, made the same point: "She has a constitutional right -- like any other student -- to freely speak about the factors that contributed to her success."

School district officials say students are encouraged to mention religion, but McComb's comments went too far and amounted to religious proselytizing, which they refuse to allow. Allen Lichtenstein, the ACLU general counsel, said: "There should be no controversy here. It's important for people to understand that a student was given a state-sponsored forum by a school and therefore, in essence, it was a school-sponsored speech."

Lichtenstein's no-controversy announcement is a bit much. Not every speech on school grounds qualifies as a "school-sponsored speech." The key question is: Who is speaking? Is it the individual student, or the school, selecting a speaker who reflects the administration's views?

The county school board acknowledges this issue clearly. Board policy says that when school speakers are selected "on the basis of genuinely neutral criteria" and retain primary control over their text, then what they say is not attributable to the school and may not be restricted." So on the basis of the board's own principles, it seems that McComb should have been allowed to speak.

Nobody in the audience could have plausibly concluded that she was speaking for the school district or that government was endorsing Christian belief. If the school was worried on this point, it could have made unmistakable disclaimers after reading her text. There is a catch-22, however. By requiring students to submit texts in advance, the schools involve themselves in the editing process, thus inviting judges to rule that the talks are indeed state-sponsored.

Officials relied heavily on the argument that McComb was proselytizing, not just expressing her religious beliefs. One version of her original text, circulating on the Internet, does not seem to be proselytizing at all. Besides, government shouldn't be in the business of judging the content and appropriateness of religious expression. It should just get out of the way and let valedictorians control their own message.

I think it's tacky to make anything more than a glancing reference to one's own faith to a diverse and captive audience at a commencement. On the other hand, I think these speakers have a clear First Amendment right to say what they think is relevant on the big day. The republic won't fall if an 18-year-old feels the need to attribute school success to Muslim, Christian, Wiccan or vegetarian principles.

One problem here is the great bugaboo of the culture wars: sensitivity. Many people think they have a right never to be annoyed, never to hear anything they disagree with. In one California case, decided against a religion-minded salutatorian, a federal judge wrote that "Forcing a dissenter to make the choice between attending ... and participating in a religious practice in which the dissenter does not agree is not constitutionally permissible." That is one sensitive judge. She thought listening to a student's speech was like compelling attendance at someone else's religious service.

Writing in 2001 about another such suit, columnist Cathy Young said: "As applied in this case so far, the First Amendment seems to be less a guarantee of religious freedom than a speech code guaranteeing that no one's feelings are hurt."

In the McComb case, the ACLU cites two 9th Circuit decisions. Why not? Both were on the ACLU's side. But there are two decisions in other circuits that go the other way. It's surely time for the Supreme Court to decide.

COPYRIGHT 2006 JOHN LEO