By Mark David Blum, Esq.
The United States Supreme Court yesterday slashed another deep tear into the fabric of freedom and liberty. Finding in favor of the school district’s right to suspend a student because the student hung a ‘Bong Hits 4 Jesus’ sign during the televised passing of the Olympic torch, the Supremes dug deep into their content based analysis and came up with the only response available to a Conservative: “I am your father and you will do as you are told.”
First, let us be clear: The issue is not one of free speech. Even the plaintiff student admits his was a publicity stunt and not a political or religious based comment. “Speech” in this nation has been so niggled and chiseled away at that only certain types of speech are barely considered within the penumbra of the first amendment. Political and religious speech are among the two highest orders of and most protected forms of speech. Bong Hits was none of those but rather a stunt to get on television. Unfortunately, with Alito and Thomas spinelessly marching behind Scalia and Roberts, we are going to see a lot more “government is OK as your parent” decisions.
Secondly, the unfurling of the sign happened on a class school trip to see the passing of the Olympic torch. Again here is where the critical moment arose. Since events happening within the shield of ‘school’ are subject to school rules and oversight, the Loco Parentis insanity dominated the outcome. The trip was ruled a school event and that gave the school all the authority it needed to ban the poster and take punitive action against the student.
Finally, as with all our other Constitutional freedoms, the Supreme Court continues its quest to enlarge the already canyon-esque nature of the ‘Drug Exception’ to the Constitution. Whenever drugs are involved in the case, the Court always manages to find some way around Due Process, Search Warrants. Probable Cause, and Liberty. ‘The “special characteristics of the school environment,” and the governmental interest in stopping student drug abuse—reflected in the policies of Congress and myriad school boards, including JDHS— allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. Tinker warned that schools may not prohibit student speech because of “undifferentiated fear or apprehension of disturbance” or “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, extends well beyond an abstract desire to avoid controversy. (p.14).
Today’s youth, like the thousands of generations before them, see life in a limited sphere and cannot fathom a world 30, 40, or 50 years hence. With every passing day, pandering politicians and cowardly administrators close down opportunities and shove our young into tightening boxes of rigid behavior; stamping out creativity and critical thinking. The anger that boils over, the frustration, and the prison-esque environment of some schools leaves our children torn between competing political theories.
One theory is that my government and leadership is always doing the right thing. The theory presupposes that leadership is on the right course with a benevolent heart. Indoctrinated with the “my government, right or wrong” attitude, followers of this trend go along flaccidly with whatever they are told to do and find comfort in that.
The other theory, the one penned by Thomas Jefferson on a piece of hemp, makes no such assumptions. To the contrary, the uniqueness of the American experiment was that all political power and authority flowed uphill with the starting point being the individual. Only those rights and liberties voluntarily surrendered to the State for the greater good are lost and even then, their loss is intended as temporary. Government is presumed as a necessary evil and must always be held in check as to fail in supervising your government will result in small and incremental losses of freedom which will never be regained.
The question however, comes up frequently amongst my own clients … about dealing with a government that refuses to be honorable. Some of the examples are how Syracuse police target young black males for harassment and arrest. Many feel the justice system is stacked against their race and very few students believe they will be living in freedom after age 25.
The argument goes that if government takes away your First, Fourth, and Fifth Amendment rights, your only choice may be the Second Amendment. That right, to keep and bear arms, has nothing to do with militias or hunting. It is about the last line of defense against a corrupt and threatening government. Guns are the great equalizer and Thomas Jefferson and those who stood with him declared that there comes a time when government oppression is so great, that the only solution to rise up to arms. Because our children cannot vote and so much oppression is being levied “in their best interests”, they are resorting to the natural alternative to ballots: bullets.
One of the most astute political comments I have ever read was offered by a middle aged blue collar Black man. It was during an A-2 felony drug trial and during my turn at jury (de)selection, I came upon this unassuming man. Being he was the only Black candidate for the jury and the Defendant was Black, I began a gentle inquiry. Specifically, I asked him if he had an opinion about the nation’s War on Drugs.
His response has been one of those statements that you hear and which stay with you for a very long time. He looked me right in the eye, then lowered his head and looked down (a cultural thing) and said, “a government which declares war on its’ own people has no legitimacy.”
Eight years have passed since that day and those words first were uttered aloud in a Court of law. Yet, every time I repeat them, the meaning and impact of what that juror was saying strikes harder. Such a simple sentence so very much summarizes how we see ourselves as free Americans and the dreams of the true American promise. We see ourselves as autonomous of government intervention unless absolutely necessary and with our consent. “Government” is supposed to be just the guy down the street who ran for office and got elected; someone we would never see as our enemy. He is our representative; never our leader.
As an attorney and officer of the court, I work as hard as I can to bring enlightenment and change inside the system. Sometimes it works; others it does not. The one thing I do know absolutely is that the Judge and legal system itself is the last line of defense against a corrupt government. When judges start making Nuremburg arguments (I hate to do this to you because it is immoral, but I have no choice), our very essence as a nation is sacrificed and faith in government is lost. When a people do lose faith in their government or see the government as having declared war on its’ own people, then indeed the government will have no legitimacy.
The best example is by way of my own work. No lawyer can claim a 100% win rate because ‘winning’ is not always an option unless you consider mitigation to be a victory. Losing a heartbreaking criminal case or having an unexpected defeat in a civil case can be a serious kick in the groin. Yet, each time a party loses, so long as they felt that the playing field was level and the lawyers did their job and the judge listened and was fair, then a loss does not implicate our justice system and cause the litigant to turn on his own government.
It is truly amazing how in a criminal case, citizens of this nation voluntarily walk into courtrooms from Washington State to Washington D.C. despite knowing full well they may not walk out of there. So much do we trust our own system, that even the most sociopath amongst us most times surrenders and bends to the will of the State; even offering up decades of their freedoms. Despite sitting in Attica, a defendant who has had a fair trial will blame lying witnesses, stupid girlfriends, or whatever. But, their trust in the integrity of the system is not challenged and will work zealously within the system, despite the futility thereof.
Obviously, I do not condone or advocate the use of drugs by anyone. Every year, on the first Tuesday in November, we as a People, have the chance to overthrow our government. Unfortunately, however, while we can change legislators, we cannot change tenure protected teachers. Ironic too is that the entire concept of tenure is designed to shield teachers from political control and yet it is they who themselves are using this shield as a sword to blind and quiet the voices of the next generations.
One root cause of violence amongst our youth on the streets is that they have never been exposed to the real beauty and power that the American experiment offers. Instead, they tend to be moreso victims of abuses of the State and thus do not recognize the authority of the State or submit to her laws. In doing so, they present a danger greater than a terrorist. To them, the government no longer has legitimacy and the only option they see, is to stand against the entirety. When bands of people start to feel the same way, you find Crips, Tea Parties, and Massacres. If the poison spreads, revolution and civil war are not far behind. Remember our own history when the English crown lost its’ legitimacy to govern because of the perceived arbitrary and unfair manner in which laws and taxes were applied.
To those who Hit It and those who do not, to those who stand with Jesus and to those who disregard his existence, to all you who will one day reach the age of 18, remember forever these words I tell you here: All political power in this country starts from you. You have the full range of every liberty imaginable and only those you choose to give up for a greater good are surrendered. Once you give up a right or liberty it is gone forever. It is your duty to stand in opposition to every effort by government at every level when they try and reduce or take away liberties. In small almost imperceptible steps sometimes, government will completely strip bare and entire body of freedoms. If you don’t stand your ground, even if you are the lone voice, then you have violated the sacred trust placed in you by our nations founders and have wasted the gallons of blood spilt by previous generations to protect that sacred trust. It may take you five years or fifty to find that voice, but when you do, speak up loud and strong. Find what lights you up and follow it with all your heart. Never forget what real liberty is; the right to make all the mistakes and to be as stupid as you can be. You will be judged by your grandchildren not by your failures but by how you responded when you did.
