WHENEVER we talk about freedom of speech, you might as well just cue the violins.
It's a principle so precious, so intrinsic to our sense of democracy.
Invoking the right to express your views without interference from the government is akin to praying. (Apologies to atheists, agnostics and opponents of Philadelphia's Christmas Village.)
To protect that right, we pretty much let everything into the marketplace of ideas, except fighting words, certain cries of "Fire!" and obscenity (of which we know it when we see it, except when it's covered by brown wrapping paper).
That's a very good thing. After all, regardless of how much you might hate what someone has to say, you don't have to listen. As a wise person once remarked, your right to speak is as precious as my right to tune you out.
The problem is that we have a tendency to confuse the importance of being able to speak with the substantive value of the speech itself. The First Amendment is a magnificent thing. But much of what it protects is waste product.
And no amount of media spin can elevate that expressive trash into something nobler. Take the recent decision from a federal judge in Easton allowing middle-school kids to wear "booby" bracelets in support of breast-cancer awareness.
I completely understand why the school district wanted to ban the practice, especially in a coed setting. Putting the word "boobies" on your wrist is guaranteed to get a newly hormonal boy's attention, and not in a scholarly way.
Of course, school officials are on rather shaky legal ground, even though they've decided to appeal the decision. They're going to have to get around Tinker v. Des Moines, in which the Supreme Court held that students should be able to protest the Vietnam War by wearing black armbands to school. Justice Abe Fortas delivered this sage pronouncement (shortly before he resigned from the court for suspected ethics violations):
"Neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
I don't necessarily agree with that, since I think the disruption caused by exhibitionist peaceniks had the potential to outweigh any expressive benefit to the student body. And Tinker opened the floodgates to some pretty raunchy behavior in the name of "freedom of expression."
But that was to be expected from the Warren Court, which never met a constitutional right it didn't try to expand.
I suspect that the "booby" bracelets had more to do with exhibitionism than social conscience.
Sure, there are earnest kids out there. But you can be fairly certain that if a teenager is telling you she wants to protest some injustice, it's probably because (a) her friends are doing it and she doesn't want to be left out; (b) it's a way to get out of homework; (c) it's bound to annoy her parents; (d) Oprah thinks it's cool; or (e) it's a way to meet a member of the opposite sex. (Unless, of course, she's protesting for marriage equality.)
But again, if a black armband is OK, you have to think that a bracelet with "boobies" written on it is protected expression as well. I'm wagering that the school is going to lose this one, a wager I hope I lose.
The thing that really irks me is the attempt to make it seem as if these middle-school girls are really engaging in some admirable campaign to raise breast-cancer awareness.
They're raising something all right, but it's not awareness.
Those bracelets were designed to titillate, and no amount of sermonizing from the breast-cancer activists can change that.
If we really wanted to engage young folk in the fight against cancer, we'd show them pictures of women who've lost their breasts, we'd teach them how important it is to do breast exams, we'd have them volunteer in hospitals and hospices.
We wouldn't appeal to the lowest common denominator by letting them strap a double entendre on their wrists.
Poor taste may be constitutional, and it might be effective.
But it's still raunchy, despite that judicial imprimatur.
Christine M. Flowers is a lawyer.
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