But if you listen to the oral arguments (excerpted in
"May it Please de Court: The First Amendment" by Jeremy Irons;

In article <LIqdnUhagso-Fx_bnZ2dnUVZ_iydnZ2d@giganews.com>, Mark K.
Bilbo <gmail@com.mkbilbo> wrote:

On Tue, 26 Jun 2007 20:54:51 +0000, Arturo Magidin wrote:

In article <85ydne8UDPM36xzbnZ2dnUVZ_oernZ2d@giganews.com>, Mark K.
Bilbo <gmail@com.mkbilbo> wrote:

On Tue, 26 Jun 2007 10:04:22 -0700, Arturo Magidin wrote:

[...]

And Justices Alito and Kennedy explicitly said that they believed
this is as far as such restrictions can go, and that had the banner
been about political issues (explicitly including questioning the
"war on drugs"), then it would have been a violation of the
student's constitutional rights to take down the banner or to
discipline the student.

You mean I agree with ALITO? Okay, these are weird days.

It happens from time to time. For example, I'm thinking of one case,
which was decided 5-4 (a while ago, mind you) in which I think you'll
agree with Scalia (I do in that one). Want to guess?

I'm not sure I want to contemplate agreeing with Scalia. Especially not
with a river suitable for drowning myself is so close. <g>

(And I wouldn't know where to start on guessing)

Well, as I said elsewhere, Scalia agreed silently.

The case(s) I had in mind were Texas v. Johnson 491 U.S. 397 (1989), and
the follow-up, United States v. Eichman, 496 U.S. 310 (1990). These were
flag-burning cases. In Texas v. Johnson, the issue was a Texas law that
forbade "desecrating" the flag. The law was struck down as an
unconstitutional abridgement of First Amendment speech rights by a
5-member majority, with Justices William Brennan (who wrote the
opinion), Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony
Kennedy in the majority; Scalia silently joined the majority. But if you
listen to the oral arguments (excerpted in "May it Please de Court: The
First Amendment" by Jeremy Irons; or in full in "The Supreme Court's
Greatest Hits" CD Rom, by Jerry Goldman), Scalia just nails the Texas
attorney defending the law. The Texas attorney claims that the law is
needed because the flag is a "national symbol", and Scalia points out
that this is nonsense: that the real purpose of the law is to have a
->respected<- national symbol, and that this is unconstitutional. The
government cannot command that something be respected in that sense. He
just puts his finger on exactly the right point, and argues quite
persuasively in my opinion that the Texas goverment position is
untenable. I think that if you listen to the oral argument, you will
find yourself agreeing with Scalia. I certainly did. And believe me, it
surprised me no end.

Rehnquist wrote the major dissent, but John Paul Stevens, today
considered the most liberal member of the Court, also wrote a dissent.

Kennedy wrote a famous short concurrence in which he said among other
things,

"The case before us illustrates better than most that the judicial
power is often difficult in its exercise. We cannot here ask another
Branch to share responsibility, as when the argument is made that a
statute is flawed or incomplete. For we are presented with a clear
and simple statute to be judged against a pure command of the
Constitution. The outcome can be laid at no door but ours.

"The hard fact is that sometimes we must make decisions we do not
like. We make them because they are right, right in the sense that
the law and the Constitution, as we see them, compel the result. And
so great is our commitment to the process that, except in the rare
case, we do not pause to express distaste for the result, perhaps
for fear of undermining a valued principle that dictates the
decision. This is one of those rare cases."

U.S. vs. Eichman was the follow-up, dealing with Congress's attempt to
overrule Texas v. Johnson by legislation, the federal "Flag desecration
act". It was ruled unconstitutional by the same 5 justice majority,
against the same 4 justice minority.

Since then I've discovered that I quite like and agree Scalia's
positions on ->individual<- Free Speech rights. I like his reasoning,
and I like his votes and decisions. He has great deference for the
individual right to speech, both word and symbolic. What I dislike is
that he extends this to things like corporations (as he did Monday on
the campaign finance case), and that he tries to use the same kind of
reasoning when dealing with free exercise/establishment clause cases. I
don't think this is tenable because while you can try to draw parallels
between the Free Speech and the Free Exercise clauses as they apply to
individuals, the Establishment Clause has no speech-parallel, and as
such, in my humble lay opinion, should be treated differently.

There was a question relating to both actions. It could have been that
taking the banner was fine (in so far as a "reasonable observer" might
conclude the banner was related to a school event) but not suspending
the student.

My opinion, suspension was too much. Taking the banner and explaining
why with a "do it again and..." would be sufficient.

Me too; and Breyer basically said that the school could take down the
banner, and that they should end there. The student sued for monetary
damages stemming from the suspension, and Breyer argued that since the
Principal has qualified immunity, that should be the end of it regarding
the suspension.

I *do think our schools way overreact to just about everything
(especially the War On Drugs!). And that it's backfiring (kids may do
stupid things but the doing stupid things doesn't mean they're stupid).
Being rational about it would go a great deal further.

Honey and vinegar and all that, yes.

But what the hell were they supposed to do? It was a school sanctioned
event and if they'd let it go, can you imagine the pounding they'd be
taking from parents now?

It was a quasi-sanctioned event. It was a bit weird. It wasn't a school
outing as such, but rather school was let out to watch the torch relay
pass outside the school.

Then again, the action was not really disruptive. Again: I think
whether taking down the banner or not was
arguable and either action would be constitutional. I think suspension
was going too far. But I'm not on the Supreme Court.

From the preface to the Opinion for the Court:

"Our cases make clear that students do shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate
Tinker v. Des Moines Independent Community School Dist., 393 U. S.
503, 506 (1969) . At the same time, we have held the constitutional
rights of students in public school are not automatically
coextensive with the rights of adults in other settings Bethel
School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986) , and
that the rights of must applied in light of the special
characteristics of the school environment Hazelwood School Dist. v.
Kuhlmeier, 484 U. S. 260, 266 (1988)."

Argh. This got muddled when I cut-n-pasted. The first sentence should
read "Our cases make clear that 'students do NOT shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate'" [emphasis added] (the internal quotations messed up
the transfer of text).


[...]

It's a fine line I admit. I wonder, also, about the idea that they
"shed" something when they enter the school grounds. Since when did they
have full, unlimited rights at home?

See above. I messed that up. The idea is that students have ->some<-
rights, and their rights, attenuated as they are, do not completely
disappear simply by going to school.

[...]

This is a serious blow to Establishment Clause precedent. Taken
together with other 5-4 decisions this term, many have said this is
a definite "sea change" in SC jurisprudence.

Okay, *that one is amazingly bad. I think the "Bong hits" thing is a
distraction.

In fact, the general idea that citizens have "no standing" when it
comes to actions of their President is... well, not good doesn't even
begin to cover it...

You generally have grounds if you are affected ->directly<-. Also,
generally, a tax payer does not have standing to sue the government on
spending just because you do not like the spending being done. It is
in the area of the Establishment Clause that there is/was an exception
to this: tax payers do have standing there. (And Scalia and Thomas
would remove the exception altogether).

Yeah I don't care for this at all. Civil rights issues have effect on
*all of us. I think anybody who is a citizen should have standing.

There needs to be some limits. For example, though I dislike the
"Abstinence Only" programs, find them counterproductive if not actively
misleading, I should not have the right to sue the government to stop
from spending money on them simply on those grounds (though if they
start teaching religion, then it's a different issue). By the same
token, if someone does not like evolution, they should not have the
right to sue the government to stop spending money on museums or grants
that support research in evolution on the grounds that they don't like
them or find it morally objectionable. It is Establishment cases that
are an exception; I think the general rule is needed, for sure, but the
exception is also needed.

[...]

In practice, it means the President has extremely wide authority to
spend his "discretionary funds", even to the point of using them to
promote specific religious denominations if he wants to, and nobody
can sue to stop him. Their only recourse it to vote for someone else
come the next election.

That's what bothers me most. That the President has "discretion".

This current bunch is ceding *far too much power to the executive. And
that is, in itself, regardless of the particular case, dangerous.

This is inherited from the Nixon administration. Cheney, Rumsfeld, and
company came of age in the Nixon administration, and they have the same
view of "expansive executive power" that Nixon did. In fact, if you look
at the arguments made in the Detainee cases about executive power and
jurisdiction of the courts, they are almost word-for-word identical to
the arguments that Nixon made in his Supreme Court case about the White
House tapes, arguing that Congress did not have the power to subpoena
him, and in the case about the Saturday Night Massacre. The view that in
applying the constitution, it is the President who has the power to
decide what it means (as opposed to the Courts). Bush extends this to
laws as well, as evidenced by the signing statements. I don't like it
either.

Roberts and Alito worked in the Reagan administration, when their
supervisors would have been people advocating that "powerful-executive"
rule in the first place.

The Founders meant the true seat of power to be in Congress.

I'm not sure I necessarily agree, and in any case we've had at least two
major changes since then which were meant to ->change<- the center of
gravity. The popular election of senators, for example, was meant to
move the center away from the states and the Senate and towards the
Executive. And the Civil War amendments were also meant to shift the
center of gravity. To be honest, I prefer the checks-and-balances view;
there is meant to be no true "seat of power", but rather specific areas
in which each branch is pre-eminent.

On Jun 27, 8:46 am, "Mark K. Bilbo" <g...@com.mkbilbo> wrote:

If you believe that first amendment rights end at the school door )or
that school administrators and teachers can stand in loco parentis
for first amendment purposes) you cannot escape the conclusion that
schools may, with no constitutional problem, teach students that
Jesus died for their sins and discipline them if they disagree.

Sigh. You can play these games all day but the reality is our society
does not extend full rights to minors. We never have. Else, "Go to your
room!" would be a violation of civil rights.

I don't see why what rights minors have with respect to their parents is
relevant to what rights parents, acting behalf of their minor children,
have against the state.

And the issue of separation revolves around the state has no power to
do anything respecting establishment. Even if you took the stance that
minors don't have freedom of religion, the state is still powerless to
*do anything. The amendment strips them of the ability to act.

That's nonsense. If this were true, the state would be powerless to
punish this student for his "Bong hits 4 Jesus" sign. If they had the
power to discipline him for that, they have the power to discipline him
for other speech they don't like, such as disagreeing with their
religious views.

This wasn't a case where the school did nothing. This was a case where
the school did something. If you believed your own argument, you would
have to hold that the school had no power to act.

If you take the position that minors have full civil rights, they could
sue their parents for taking them to church.

Again, this is a non-sequiter. I have said nothing about what rights
parents have over their minor children. If you believe state actors can
stand in loco parentis for first amendment purposes, then they *do* have
the power to instill religion. If they have the power to squelch speech,
they have the power to instill religion. You have not distinguished
these two.

If that's your position, fine but I'm talking about what we have done
all this time and that the ruling is *not out of line and is, in fact,
considered rather narrow.