“Rights-crazed” or “rights confused?”

I posted earlier today noting this is the 20th anniversary of the U. S. Senate’s vote to reject the nomination of Judge Robert Bork to sit on the Supreme Court.

In this post I want to share with you excerpts from an article, “Thanks a Lot,” Judge Bork wrote this past Spring. I first saw it in the Apr.16 National Review. It’s now available online here at encyclopedia.com. After the excerpts I offer some comments.

Now Judge Bork. My comments follow below the star line

Once more the lunacies of America's rights-crazed culture are on display in our highest court--disguised, of course, as a serious civil-liberties issue.

A high school in Juneau, Alaska, released students from class to watch the 2002 Olympic Torch Relay. As the torch runner passed, Joseph Frederick, a senior and apparently an apprentice wisenheimer, attempted, along with some friends, to attract television cameras by unfurling a 14-foot banner with the words "BONG HITS 4 JESUS." Deborah Morse, the school principal, took the banner away and awarded Frederick a ten-day suspension.

Inevitably, he sued, alleging a violation of his First Amendment right to freedom of speech. The school board upheld Morse, as did a federal district court, but a three-judge panel of the Ninth Circuit Court of Appeals reversed.

The nine justices of the Supreme Court then accepted the case for review under its official title of Morse v. Frederick, though it will undoubtedly go down in history as "the great bong case."

There is a certain madcap disproportionality in all this.

An insignificant five-year-old fracas has now engrossed the time and energy of 13 federal judges as well as the principal and the school board. It is a truism that we live in a culture riddled and fragmented by ever-proliferating rights, but that this minor instance of school discipline should be treated as a crucial civil-rights issue suggests that we have lost our balance and even our sense of humor.

Deploying the federal judicial system in full regalia for the Morse-Frederick squabble is like hunting field mice with an elephant gun.

It would be merely laughable if it were not possible that basic principles of the First Amendment will be put in play and further deformed.

There is little consensus about the proper result in this case. Liberals and those hybrids known as libertarians generally favor the further expansion of the category of protected utterances. Conservatives can be found on both sides.

My own view is that Frederick's complaint should have been dismissed out of hand.

The speech clause took a wrong turn some time back, and, in cases like this, it very likely does more harm than good to both law and education […]

It should be unacceptable that judges who have inadequate knowledge of what took place some years ago issue rulings and then depart the scene, leaving others to bear the burden of the long-term outcomes. Justice Hugo Black's dissent in Tinker looks better and better. Black, a fierce advocate of free speech and expansive First Amendment protections, nevertheless wrote with considerable indignation that the Court had taken from educational officials "the power to control pupils." […]

Education in the United States is concededly in poor condition. There was a time when public schools did a far better job, and that time was characterized by school discipline without recourse to the ACLU and the new and burgeoning mass of constitutional rights.

I went for three years to a public high school where behavioral standards were maintained, at least during school hours. I was suspended for saying "Thanks a lot" to a teacher in a sarcastic tone. It never occurred to me or anyone else to go to court. And the result was good for the school, for the other students, and, not least, for me.

It is unfortunate in the extreme that law is being forced into every institution and social relationship.

When law attacks authorities within institutions, it weakens those institutions, deprives them of their integrity, and makes them less effective.

No doubt the obsession with rights has spread to the general population, which is all the more reason for the courts to step back and stop feeding the rights paranoia.

If the Supreme Court holds for Deborah Morse, no harm will be done to Joseph Frederick or the law, and a process of rethinking the First Amendment, and reinvigorating schools and other institutions, may begin. ( Early in this current term, the Supreme Court ruled 5-4 in favor of Morse & the school board. – JinC )

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With all respect to Judge Bork, I wish he'd said “rights-confused” instead of “rights-crazed.”

Millions of American’s who support in the name of free speech Joseph Frederick’s right to wave his “Bong” banner also support speech codes on college campuses.

Iran’s President Mahmoud Ahmadinejad is invited to speak on Columbia’s campus while ROTC recruiters are banned from speaking there.

Social workers and school nurses can decide to take a 14-year-old for an abortion without telling the girl’s parents. But they can't give the girl an aspiran without parental consent.

And don't forget all those people who still think Crystal Mangum has a right to have her blatantly false charges taken so seriously that three white men she picked out at random should have to stand trial for multiple felonies?

Who doubts America has become “rights-confused?”

Bork’s entire article is here.