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Abstract
The US Supreme Court has considered the question of free speech rights for students several times since its landmark Tinker v. Des Moines ruling in 1969. In each case it has confronted the failure of existing precedents to crystallize the imaginary distinction between speech and action in such a way as to satisfactorily negotiate the social relationship between students and educators, youth and adults. This essay analyzes three cases in the student free speech tradition, attending to the ways in which materiality is thematized in the course of a negotiation of the interests of adults vis-à-vis youth.
Acknowledgements
He wishes to thank John Lucaites, Robert Terrill, Ted Striphas, Michael Grossberg, Mary Stuckey, and the anonymous reviewers for their feedback and advice.
Notes
1. Stanley Fish, There's No Such Thing as Free Speech, and It's a Good Thing Too (Oxford: Oxford University Press, 1994), 105–6.
2. Stanley Fish, There's No Such Thing as Free Speech, and It's a Good Thing Too (Oxford: Oxford University Press, 1994), 111.
3. While Fish has not, to my knowledge, self-identified as a strict adherent to CLS, he has published in the area. See Stanley Fish, “Fish v. Fiss,” in Interpreting Law and Literature: A Hermeneutic Reader, ed. Sanford Levinson and Steven Mailloux (Evanston, IL: Northwestern University Press, 1988), 251–68.
4. Mark Kelman outlines these components of the CLS method in A Guide to Critical Legal Studies (Cambridge, MA: Harvard University Press, 1987), 3–5. See also John Louis Lucaites, “Between Rhetoric and ‘The Law’: Power, Legitimacy, and Social Change,” Quarterly Journal of Speech 76, no. 4 (1990): 435–66. For other critical studies of the First Amendment and the speech/action logic, see: Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, CO: Westview Press, 1993); Catharine A. MacKinnon, Only Words (Cambridge, MA: Harvard University Press, 1993); and Rae Langton, “Speech Acts and Unspeakable Acts,” Philosophy and Public Affairs 22, no. 4 (1993): 293–330. For liberal responses, see: Franklyn Saul Haiman, “Speech Acts” and the First Amendment (Carbondale: Southern Illinois University Press, 1993); and Lawrence Douglas, “The Force of Words: Fish, Matsuda, MacKinnon, and the Theory of Discursive Violence,” Law & Society Review 29, no. 1 (1995): 169–90.
5. Tinker v. Des Moines Independent Community School Dist., 393 US 503 (1969); Bethel School Dist. No. 403 v. Fraser, 478 US 675 (1986); Hazelwood v. Kuhlmeier, 484 US 260 (1988); and Morse v. Frederick, 551 US 393 (2007).
6. John Locke and John Stuart Mill both explicitly excluded youth from the liberties of citizenship. See John Locke, Second Treatise of Government (Indianapolis, IN: Hackett Publishing Company, 1980), 34; and John Stuart Mill, On Liberty (Mineola, NY: Dover Publishing, 2002), 8–9. Holly Brewer provides an excellent history of the process by which liberalism excluded children from the legal domain in By Birth or Consent: Children, Law, & the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press, 2005).
7. See Black's dissent in Tinker, 393 US at 515; and Thomas’s concurring in Morse, 551 US at 410.
8. New York Times v. Sullivan, 376 US 254 (1964); Miller v. California, 413 US 15 (1973); and Buckley v. Valeo, 424 US 1 (1976). For more on the progeny of these cases and a general background on free speech law, I highly recommend Thomas L. Tedford and Dale A. Herbeck's textbook, Freedom of Speech in the United States (State College, PA: Strata Publishing, 2009).
9. Morse, 551 US at 422.
10. Marouf Hasian Jr., Celeste Michelle Condit, and John Louis Lucaites, “The Rhetorical Boundaries of ‘the Law’: A Consideration of the Rhetorical Culture of Legal Practice and the Case of the ‘Separate But Equal’ Doctrine,” Quarterly Journal of Speech 82, no. 4 (1996): 323–42.
11. Fish, There's No Such Thing, 102.
12. Hasian, Condit, and Lucaites, “Rhetorical Boundaries” 335–6. Here I rely on Ernesto Laclau and Chantal Mouffe's distinction between moment and element. See Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 1985), 105.
13. Unfortunately, I do not have the space to consider Morse in this essay.
14. For detail, see John W. Johnson, The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (Lawrence: University Press of Kansas, 1997).
15. For detail, see John W. Johnson, The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (Lawrence: University Press of Kansas, 1997), 23–4.
16. From an official memorandum of the school district, cited in footnote 3 of Tinker, 393 US at 509. See also Johnson, Student Rights, 6.
17. Tinker, 393 US at 506.
18. The majority held that the armband policy was designed to allow the school to “avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation's part in the conflagration in Vietnam.” Tinker, 393 US at 510.
19. Id. at 525.
20. William S. Geimer, “Juvenileness: A Single-Edged Constitutional Sword,” Georgia Law Review 22, no. 4 (1988): 953.
21. William S. Geimer, “Juvenileness: A Single-Edged Constitutional Sword,” Georgia Law Review 22, no. 4 (1988): 953., 950.
22. The ideological terminology—“false consciousness” and “material interests”—is mine. In Geimer's words, Tinker is a “meaningless illusion,” and the Court would do better to offer a “definitive opinion” that “more accurately reflect[s] reality.” Ibid., 955, 953.
23. Tinker, 393 US at 508.
24. Id. at 509, 511, 513; “sentiment” appears as “sentiments” in the original.
25. For a more in-depth analysis of the history and structure of these metaphors, see: John Durham Peters, Speaking into the Air: A History of the Idea of Communication (Chicago: University of Chicago Press, 1999); and George Lakoff and Mark Johnson, Metaphors We Live By (Chicago: University of Chicago Press, 1980), 10–11.
26. Peters, Speaking into the Air, 2.
27. Laclau and Mouffe, Hegemony & Socialist Strategy, 111.
28. See also Michael C. McGee, “In Search of ‘The People’: A Rhetorical Alternative,” Quarterly Journal of Speech 61, no. 3 (1975): 235–49.
29. This is typical of if not essential to fantasy as such. Žižek argues that “fantasy is a means for an ideology to take its own failure into account in advance.” Slavoj Žižek, The Sublime Object of Ideology (London: Verso, 1989), 126, emphasis removed.
30. Interested readers should consult Peters, Speaking into the Air.
31. Tinker, 393 US at 513.
32. Id. at 505, 509, 511, 513, 513, 513, 514.
33. “Tinker v. Des Moines Ind. Comm. School Dist.—Oral Argument,” OYEZ (US Supreme Court Media), http://www.oyez.org/cases/1960-1969/1968/1968_21/argument (accessed August 20, 2011).
34. See Geimer, “Juvenileness,” 955.
35. As Žižek argues, a conscious thought becomes so only because it assumes a particular form, a form that is sustained outside of consciousness. Accordingly, meaningful communication—understood as an expression or transmission of conscious thoughts—is sustained by a material or substantial “Other Scene external to the thought” (Sublime Object, 19).
36. Tinker, 393 US at 514.
37. Id. at 509.
38. Id. at 508.
39. “Tinker v. Des Moines Oral Argument,” OYEZ.
40. Tinker v. Des Moines Independent Community School Dist., 258 F. Supp. 971 at 973 (1966).
41. Kenneth Burke, A Grammar of Motives (Berkeley and Los Angeles: University of California Press, 1969), 505.
42. Herrick is uncertain whether the student in question was Bruce Clark or another protester, Ross (last name unavailable). “Tinker v. Des Moines Oral Argument,” OYEZ.
43. Herrick is uncertain whether the student in question was Bruce Clark or another protester, Ross (last name unavailable). “Tinker v. Des Moines Oral Argument,” OYEZ.
44. Herrick is uncertain whether the student in question was Bruce Clark or another protester, Ross (last name unavailable). “Tinker v. Des Moines Oral Argument,” OYEZ.
45. American Civil Liberties Union attorney Melvin Wulf calls Tinker “a major victory for freedom of speech … [that] empowered students to speak out on issues of public importance.” Stephanie Sammartino McPherson, Tinker v. Des Moines and Students’ Right to Free Speech: Debating Supreme Court Decisions (Berkeley Heights, NJ: Enslow Publishers, 2006), 78.
46. Terminiello v. City of Chicago, 337 US 1 (1949); Brandenburg v. Ohio, 395 US 444 (1969); and Forsyth County v. Nationalist Movement, 505 US 123 (1992).
47. Forsyth County, 505 US at 126.
48. The Court's rulings have been somewhat contradictory on this issue. See Feiner v. New York, 340 US 315 (1951) for a counter example.
49. Bethel, 478 US at 687.
50. Id. at 678.
51. Id. at 681.
52. See Mike A. Males, Framing Youth: Ten Myths about the Next Generation (Monroe, ME: Common Courage Press, 1999).
53. Charles R. Acland, Youth, Murder, Spectacle: The Cultural Politics of “Youth in Crisis” (Boulder, CO: Westview Press, 1995); and Lawrence Grossberg, Caught in the Crossfire: Kids, Politics, and America's Future (Boulder, CO: Paradigm Publishers, 2005).
54. Bethel, 478 US at 678.
55. “Bethel School District No. 403 v. Fraser—Oral Argument,” OYEZ (US Supreme Court Media), http://www.oyez.org/cases/1980-1989/1985/1985_84_1667/argument (accessed August 20, 2011).
56. “Bethel School District No. 403 v. Fraser—Oral Argument,” OYEZ (US Supreme Court Media), http://www.oyez.org/cases/1980-1989/1985/1985_84_1667/argument (accessed August 20, 2011).
57. “Bethel School District No. 403 v. Fraser—Oral Argument,” OYEZ (US Supreme Court Media), http://www.oyez.org/cases/1980-1989/1985/1985_84_1667/argument (accessed August 20, 2011).
58. Of course, the other consideration is whether or not student government is respected as a political activity or is treated as a curricular activity whereby ideas about politics are transmitted to students. The majority's decision is somewhat ambiguous in this regard. See especially, Bethel, 478 US at 683.
59. Id. at 680.
60. Id. at 680, 681, 682.
61. Id. at 683.
62. See, for example, Clark v. Community for Creative Non-violence, 468 US 288 (1984).
63. Bethel, 478 US at 683.
64. Id. at 683.
65. Id. at 681.
66. Id. at 681.
67. Id. at 683.
68. Id. at 687.
69. Miller v. California, 413 US 15 at 30 (1973).
70. Bethel, 478 US at 683.
71. Id. at 680, 683, 684.
72. Recall, for example, Governor Arnold Schwarzenegger's attacks on “girlie men.”
73. For example, see Chaïm Perelman and Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation (Notre Dame, IN: University of Notre Dame Press, 1969), 167–71.
74. Cohen v. California, 403 US 15 at 21 (1971).
75. Id. at 23, 16.
76. Id. at 18.
77. For more on the flexibility of the liberal antagonism between freedom and governance, see Brian Amsden, “Negotiating Liberalism and Bio-Politics: Stylizing Power in Defense of the Mall Curfew,” Quarterly Journal of Speech 94, no. 4 (2008): 407–29.
78. Kuhlmeier v. Hazelwood School District, 607 F. Supp. 1450 at 1459 (1985).
79. Hazelwood, 484 US at 273.
80. Kuhlmeier, 607 F. Supp. At 1459, 1460.
81. Kuhlmeier v. Hazelwood School District, 795 F.2d 1368 at 1374, 1375 (1986).
82. Hazelwood, 484 US at 265.
83. Id. at 263, 265, 271, 271, 272, 275.
84. Id. at 272.
85. Id. at 288.
86. Id. at 288.
87. “Hazelwood School District v. Kuhlmeier—Oral Argument,” OYEZ (US Supreme Court Media), http://www.oyez.org/cases/1980-1989/1987/1987_86_836/argument (accessed August 20, 2011).
88. Kuhlmeier, 607 F. Supp. at 1459.
89. “Hazelwood v. Kuhlmeier Oral Argument,” OYEZ.
90. Hazelwood, 484 US at 272, 274.
91. Id. at 274.
92. Megan Chase, “Sophomore's View of Gays: Not a Choice,” The Journal Gazette, February 23, 2007, 10A, via NewsBank InfoWeb (accessed August 20, 2011).
93. Ese Isiorho, “EACS to Discuss Review of Student Paper,” Fort Wayne News-Sentinel, February 20, 2007, A1 via NewsBank InfoWeb (accessed August 20, 2011).
94. Kay McSpadden, “Indiana School Board Rejects Call for Tolerance,” Charlotte Observer, May 5, 2007, NewsBank InfoWeb (accessed August 20, 2011).
95. “What? Some Kids Are Gay? Woodlan Principal Evidently Lost Perspective on Sophomore's Column,” Fort Wayne News-Sentinel, February 22, 2007, via NewsBank InfoWeb (accessed August 20, 2011).
96. Grossberg documents these trends with a planet of statistical, textual, and anecdotal evidence. I would direct any readers who have reservations to the first three chapters of his book. I should also note that while Grossberg uses the war metaphor, he acknowledges its limitations (Caught in the Crossfire, 12).
97. Grossberg documents these trends with a planet of statistical, textual, and anecdotal evidence. I would direct any readers who have reservations to the first three chapters of his book. I should also note that while Grossberg uses the war metaphor, he acknowledges its limitations (Caught in the Crossfire, 12), 10.
98. This is assuming that we share Aristotle's belief that logic is expressed exclusively in subject-predicate form. Aristotle, “De Interpretatione,” in The Basic Works of Aristotle, ed. Richard McKeon (New York: Modern Library, 2001), 40.
99. Michael McGee counsels us likewise. See “The ‘Ideograph’: A Link between Rhetoric and Ideology,” Quarterly Journal of Speech 66, no. 1 (1980): 6.
100. The emerging battleground for student free speech involves speech that is produced online in the students’ free time. The resolution of this conflict—which has yet to reach the Supreme Court—will depend greatly on whether students, activists, lawyers, and judges have access to a model of criticism that can attend to the parties’ respective figurations of speech/action.