Sunday, February 24, 2013

First Amendment? We Don't Need No Stinking First Amendment!

Yes, I know technically this isn't a First Amendment issue, as this is a local school district and not the federal government. But hey, if my town putting up a creche on town property is a violation of the mythical separation of Church and state, so is this.

ND school investigating fans in KKK-style hoods
SIOUX FALLS, S.D. — A North Dakota high school principal says appropriate action is being taken after three students briefly donned Ku Klux Klan-style white robes and hoods Friday night during a state hockey semifinal game.

The photo caused an uproar on Twitter when it was posted by 19-year-old Shane Schuster, who was seated with some friends at Ralph Engelstad Arena when something in the student section across the rink caught his eye.

Now, first off, I hate the Klan as much as anyone. My grandfather - a Roman Catholic Italian immigrant - was part of the movement that helped keep the Klan at bay in the Northeast in the 1940s. They'd have just as happily lynched him - as a papist who barely spoke English - as a black man.

That said, this is precisely the kind of situation the First Amendment is so critical for. We don't need the First Amendment to protect speech that everyone agrees with. Saying "I like puppies" doesn't need protection from retribution. As much as we might hate the Klan and everything they stand for, it's not the duty of the government to squelch their speech. Hateful speech is still speech, and once we go down the road of saying "this particular speech is offensive so it is banned", it's a short walk to MiniTru.

I hope - and I know this is in an area where there have been white supremacist movements cropping up from time to time - that this is a case where the Klan hood has become an abstract concept. I hope that these students aren't actual Aryans; I hope they just thought it'd be funny to get a reaction out of people with something that their grandparents told them was offensive.

Even if not, the school shouldn't be planning disciplinary action for kids being dumbasses.

That is all.


Heath J said...

I think the telling part was that those students' little stunt only lasted until their peers noticed.

No .gov intervention needed to get them to knock it off.

Mule Breath said...

Nothing but poor judgement involved here, from the kids pulling the ignorant stunt and from school administration as well. Unless some cooler heads step in there could be dark clouds on the horizon presaging a potential constitutional storm.

What I find curious, however, is how it is you can make any connection of this political correctness gone wild and government's preferential treatment of one theology over another.

There would be no separation issues with a creche if similar space were allowed for alternate mythologies, but I doubt that ritual goat sacrifice on Eid Al-Adha, or the offering of Bael leaves for Maha Shivaratri would receive such passionate defense as do the judeo-christian mythologies.


JD Rush said...

One of the few Supreme Court decisions we went over in Iowa schools. Although further cases have limited indecent speech. Pretty sure wearing clan robes would fall under that.

Funny how the first can be applied to states, but not the second.

Jay G said...

Mule Breath,

The connection is that this really isn't a First Amendment issue, in that it's not Congress making a law against this speech. It's analogous to individual towns coming under fire for putting up a creche on First Amendment grounds - where it's a local (not Federal) entity, it's not establishing a national religion nor preventing religious expression.

Hell, my town putting up a creche has no bearing whatsoever on what religions can freely be practiced, come to think of it.

Mule Breath said...

In Lemon v. Kurtzman (1970), which dealt with the use of local government funds to support nonsecular activities, SCOTUS applied the Establishment Clause to local politics, and gave us the Lemon test.

Lemon says that (1) The government's action must have a secular legislative purpose; (2) The government's action must not have the primary effect of either advancing or inhibiting religion; (3) The government's action must not result in an "excessive government entanglement" with religion.

Lemon established that a violation of any of these is unconstitutional under the Establishment Clause.

Congress had nothing to do with that local Pennsylvania schools district's action yet SCOTUS ruled that their actions violated the Establishment Clause. Other cases have produced similar rulings about religious holiday displays when on public property or funded by government.

Only if your town also put up religious displays for any and all faiths and for those of no faith at all would the creche you mention not be a 1A violation.

In other words Jay, I still fail to see the connection.

This is your house, Jay, and I do not wish to make a mess. If this is not a conversation you care for I shall quietly exit... stage left.

Anonymous said...

When they silenced the white supremacists I said nothing.

Until they started calling me a racist for disagreeing with the state.

If I'm going to be insulted why should I be conciliatory? When their best argument isn't better than "you stink" Why negotiate when all they have is grade school playground name calling?

Have you turned in a thoughtcriminal today?

-Jay ...Baiting the thought police again I see.....

Angus McThag said...

14th Amendment makes it a 1st Amendment issue on the local school.

Federal Schools Money makes you local school a Federal School...

Ed said...

Alan Gottlieb of the Second Amendment Foundation claims that purchasing a so-called "assault rifle" is making a First Amendment protected political statement:

David Kopel gives us historical context of Gottlieb's position:

For many, Patriots' Day is everyday, not just an April Monday holiday in Massachusetts and Maine.

Mule Breath said...

Ed, while I'm not sure how much mileage Gottlieb will get out of that hypothesis, I think it is safe to assume that Jefferson's "Life, liberty" and Locke's "private property" would be difficult to defend without equal firepower.