Justice Thomas in Morse

Justice Thomas believes that "the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." Basically, his position is that parents have delegated their power to discipline their children to public schools, and thus the Free Speech Clause has no more application in government schools than it does in our homes and family lives.

Are you persuaded by this argument? Is it good originalism? Might an originalist take the position that the text of the Free Speech Clause, as applied to the states as a fundamental individual liberty, suggests that a democractic republic depends upon citizens (including young citizens-in-training) who are willing to speak out and debate contoversial issues including issues like war, drug policy, abortion and the moral good of human sexuality?

Take a look at p.12 of Thomas's opinion:

"Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools."

Perhaps in a homogenous society with a common understanding of the good life this might be true. But one of the costs of diversity--particularly of ideological (worldview) diversity--is it is no longer possible to trust that our children will be taught the good life as we understand it in public schools. As Alito and Kennedy say (p. 3), public school authorities are agents of the state and our children are made a captive audience for the often controversial (and certainly not "common") values of those who wield political power in the public school system. Parents do not choose public education--"realistically, [parents] have no choice but to send their children to a public school and little ability to influence what occurs in the school." Often, when students are disciplined for speech in the schools, the speech is nothing more than an attempt to make a counterargument against the official worldview expressed by school authorities or by favored groups of students (e.g. Poway).

What are your thoughts?

Freedom of Thought and Belief vs. Government Education

Is this a preview of what the future holds in America?

From the Religion Clause blog:

"In Spain, Catholic bishops have attacked the public schools’ new "Education for Citizenship and Human Rights" curriculum. Kath.net says that the curriculum’s goal is to encourage students to reject "racist, xenophobic, sexist, and homophobic social prejudices." The bishops say that the program violates Sec. 27(3) of Spain’s Constitution that provides "The public authorities guarantee the right which will assist parents to have their children receive the religious and moral formation which is in keeping with their own convictions." However a leading socialist party figure who was one of the drafters of the constitution, Gregorio Peces-Barba Martínez, published an op-ed this week accusing the Bishops of "extreme arrogance" and threatening a "new status", presumably a less privileged one, for the Church in Spain if it does not stop attacking the Education for Citizenship program."

Oral Argument in Second Amendment Case

From How Appealing:

1. Access online the transcript of today's U.S. Supreme Court oral argument in District of Columbia v. Heller, No. 07-290: The Court has posted it at this link.
And C-SPAN has made its rebroadcast of the audio from today's oral argument available for on-demand viewing by clicking here (RealPlayer required).

2. "Supreme Court Majority Appears To Back Gun Rights": Robert Barnes of The Washington Post provides this news update.
Michael Doyle of McClatchy Newspapers reports that "Supreme Court justices critical of D.C. gun ban."
James Vicini of Reuters reports that "Conservative justices question D.C. handgun ban."
And Greg Stohr of Bloomberg News reports that "Gun Rights Draw Support in U.S. Supreme Court Hearing."

Legal Humor--Mock Opinion in Spitzer v. United States

SCOTUS declares prostitution a constitutional right (Balkinization blog)

Virtual Tour of U.S. Supreme Court

here

Hat tip: Volokh Conspiracy

Additional Assignment

Notice that I have added one additional assignment--the one concerning Free Speech of Public Employees--to the syllabus. I think we have time to cover it, and it is an important area of free speech concern.