Student free speech and church-state separation shot down by SCOTUS?

Arguably, two basic tenants of American government were arguably shot down Monday the 25th by the Supreme Court.

The first was student free speech in the case of Morse v. Fredrick (read case summary and court decision (PDF)), better known as the case involving a banner reading "Bong Hits 4 Jesus".

The ruling in the second case hinders 'ordinary taxpayers' from suing the Bush administration over its federal grants to religious groups. That case can be tied to the separation of church and state. In his attempts to court the tens of millions of politically-active evangelicals, aka the religious right, George W. Bush has created many faith-based initiatives that include doling out millions to religious groups in return for services. This is both ethically and constitutionally questionable.

Both of the aforementioned cases deal with ideals — free speech and the separation of church and state — supported by the US Constitution.

Morse v. Fredrick saw a rare alliance between liberal civil liberties groups and conservative Christian organizations in the first student free speech case the Supreme Court has heard in years. Why was the religious right joining hands with the ACLU left? Because it is worried that similar restrictions on student free speech may reach into the realm of religious expression in schools. The court ruled in favor of the school district, which was being sued by a former student who claimed his free speech was trampled upon when he held up a banner with a suggestive drug message at a school sanctioned event and the principal made him take it down and suspended him. The banner was shown when the Olympic torch relay passed through Alaska, where the case originated, in 2002. The teenager was not officially at school that day nor was he on school grounds, which made this case especially legally sticky.

Liberal Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented on the free-speech issue and said the majority seriously harmed the First Amendment by allowing Frederick's punishment for expressing a view the school disagreed with.

"No one seriously maintains that drug advocacy (much less Frederick's ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences," Stevens said.

"Although this case began with a silly nonsensical banner, it ends with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs," he wrote.

Justice Stephen Breyer said he would have decided the case without reaching the free-speech issue by ruling the principal cannot be held liable for damages.

Breyer's opinion probably makes the most sense. Although the court ruled in 1969 that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate", which dealt with protests to the Vietnam war, it also ruled in 1986 that sexually suggestive and obscene speech at an assembly are not covered by the constitution's free speech rights. Also in 1988 the Supreme Court upheld the censoring of school newspapers.

For some legal debate on the ruling, see here.

Other recent cases in which the majority-conservative Supreme Court — often reaching narrow 5-4 decisions — showed its rightward tilt was another (poor) decision on free speech like the restrictions on some political advertising created in the 2002 McCain-Feingold act (although that one can be justified by a judicially conservative look at the constitution and arguably acted in favor of the First Amendment, even though the amendment has its own restrictions...). The right of free speech is waived if one waves a drug suggestive banner during a school-sanctioned event, but not if the corruption of the American politik with money and the filthy smears brought about by many political ads is at hand. The United States needs all the campaign reform it can get.

Today the Roberts court also ruled against affirmative action in some US public high schools. (More on the issue of positive discrimination soon.)

Chief Justice John Roberts, the protege of former conservative Chief Justice Rehnquist, was nominated to America's highest court in 2005.

Scalia is the most right-leaning of the group, supposedly representing the side against liberal 'judicial activism' (former Chief Justice Earl Warren ushered in the civil rights era in the mid-20th century with his progressive 'activism' — when no other branch followed the basic tenants of human rights and the rules inscribed in the constitution, he made sure the Supreme Court did), but in reality picking and choosing parts of the constitution and ignoring the leniency the Founding Fathers intended to give the Supreme Court in its interpretation of the US Constitution as long as they did not rule against what is stated in the constitution itself. Is America really better off with a constitution when it can be ignored by the White House and twisted and misinterpreted by the judiciary?

Thomas agrees with Scalia almost always — together they form a Supreme Court conservative superteam known as Thomas and Scalia! Seriously, often they are grouped together, with Thomas following Scalia.

Stevens and Ginsberg are the most liberal of the bunch.

SCOTUS justices' rough political leanings (more ideologically extreme come before more moderate, e.g. Scalia is more right-leaning than Kennedy)

Conservative
Scalia
Thomas
Roberts
Alito
Kennedy

Liberal
Ginsberg
Stevens
Breyer
Souter

The all-powerful executive

Tony Snow, the White House press secretary, said recently that Congress has no oversight authority over the executive. Has he ever even read the US Constitution? Has he ever heard of checks and balances, as described in the constitution? Many in the Bush administration have taken the unitary executive theory to the extreme.

Signing statements have also been used in excess by the president so he can get around the law, without having to use his veto power.

Here's what the president can do:

The president:

* is the Commander in Chief of the armed forces. He or she has the power to call into service the state units of the National Guard, and in times of emergency may be given the power by Congress to manage national security or the economy.
* has the power make treaties with Senate approval. He or she can also receive ambassadors and work with leaders of other nations.
* is responsible for nominating the heads of governmental departments, which the Senate must then approve. In addition, the president nominates judges to federal courts and justices to the United States Supreme Court.
* can issue executive orders, which have the force of law but do not have to be approved by congress.
* can issue pardons for federal offenses.
* can convene Congress for special sessions.
* can veto legislation approved by Congress. However, the veto is limited. It is not a line-item veto, meaning that he or she cannot veto only specific parts of legislation, and it can be overridden by a two-thirds vote by Congress.
* delivers a State of the Union address annually to a joint session of Congress.

The president cannot break American law (wiretapping, FBI Patriot Act use, etc.), international law (Geneva Conventions cum Gitmo, CIA prisons, etc.), sidestep congress whenever he pleases, lie under oath (which I do not think Bush has yet done — ?), or commit any number of obvious and stealthy offenses of the constitution and current law. Clinton lied under oath (i.e. Lewinski); Nixon broke countless laws (e.g. Watergate); Reagan broke plenty national and foreign laws and regulations too (e.g. Iran contra). Bush has done basically all of those except the oath-breaking.

Side-note: while browsing the constitution, I found some interesting sections. I guess most people have forgotten about this one — Article II, Section 4 of the US Constitution:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

The right to bare arms, but not the right to murder

CNN does some decent reporting for a change (I know, it's a long quote)...

The U.S. is the world's largest maker, buyer and seller of guns but the country's constitutional right to bear arms comes at a high price -- one that gun control advocates say the whole world is paying.

Monday's shooting at the Virginia Tech University in Blacksburg, Virginia, that ended in the deaths of 33 people was symptomatic of a global gun crime epidemic, campaigners said.

"The U.S. stands out as the developed country with by far the highest levels of gun deaths and gun homicides," Alun Howard, a spokesman for the International Action Network on Small Arms, told CNN.

The White House defended the right to bear arms at a press briefing Monday.

"As far as policy, the president believes that there is a right for people to bear arms, but that all laws must be followed," said Dana Perino, a spokesperson for President George W. Bush.
...
According to an IANSA report published in 2006, gun-related incidents result in 300,000 fatalities and one million injuries worldwide every year. Many of those guns come from the U.S.
...While most developed nations react to incidents of gun crime with legislation to insure stronger control measures on the sale and flow of firearms, the gun culture in the U.S. has resisted change.

Weapons manufacturers and pro-gun government officials have consistently rejected efforts by domestic as well as international bodies to regulate and control the flow of arms in and out of the country.

A report released by Amnesty USA noted that the governments of the U.S., China and Russia saw new regulations as "limiting their commercial and foreign policy options," while arms manufacturers feared "a threat to their bottom line."

According to the report, small arms manufacturing in the U.S. is a $2 billion-a-year industry. Companies profiting from that business, as well as powerful lobby groups like the NRA have consistently blocked efforts to clamp down on easy access to firearms.

International reaction

World leaders Monday responded to the Virginia massacre with messages of condolence as well as calls for change.

"Like everyone, I am deeply shocked by the terrible loss of innocent lives at Virginia University," said British Prime Minister Tony Blair, expressing condolences to the families of the victims.

Australian Prime Minister John Howard was more candid in his remarks, offering his sympathies, but condemning U.S. gun culture as a negative force in society.

Howard, who staked his political leadership on pushing through tough laws on gun ownership in Australia after a lone gunman in his country killed 35 people, said the Virginia shootings were a tragedy of a kind he hoped would never be seen again in Australia.

"We had a terrible incident at Port Arthur, but it is the case that 11 years ago we took action to limit the availability of guns and we showed a national resolve that the gun culture that is such a negative in the United States would never become a negative in our country," he said.

Among the victims in Virginia was a professor from India. His death brought a strong response from K. Subrahmanyam, a former member of India's National Security Council.

"It's not a question of an Indian professor getting killed in the firing. This is related to the American gun laws," he said.

"We can't do anything about it. It is something which has happened in the United States. They have got to change the law."

Interesting that Howard, ever so chummy with America, spoke out strongly against its domestic laws. Handguns are banned in the United Kingdom. And in many other developed countries there are great restrictions, including the need for people seeking a firearm to provide a valid reason (e.g. Italy), or if it is for hunting purposes (e.g. Sweden).

President George Bush visited today the site of the massacre at Virginia Tech university in Blacksburg, Virginia. "It's impossible to make sense of such violence and suffering", he said. It is actually possible to make sense of the violence: a disturbed student, possibly a bullying society, but not like the totally isolationist one of Columbine, where the most vivid student massacre in US history took place almost eight years to the date of the killings yesterday. Bush is amazingly thick if he cannot recon with rampant depression in Americans, which has next to nothing to do with lack of religion, and the easiness of acquiring a firearm.

I know, there is usually no reason to be so hostile to a man (George Bush) who already looks so bad. But really, this is a man who has fought against any measure of firearm regulation; a man who received large amounts of money from disgusting organizations like the National Rifle Association (NRA) and the Gun Owners of America, organizations who, I might point out, care not about the rights of Americans, but about the profits of gun makers, plus a possible touch of sadism. The American gun culture and the politics associated with it are influential in Washington: lobbying groups like the NRA often get their way.

Okay, so the constitution allows the right for individuals and/or state-run militias — depending on one’s interpretation — to keep and bare arms. Great: if a government conspiracy strikes against you I’m sure your Magnum will do a fine job defending you against a couple dozen AKs and a handful of tanks. If a mugger strikes you on the street, yeah I’m sure whipping out and unlocking your small handgun would be a faster defense than a squirt of legal, and non-lethal, pepper spray. For all those who don’t undersand the concept of sarcasm, that was it.

Self defense is fine, but would it not be easier to just paralyze or harm in a minor way the perpitrator? There are plenty of options: from mace to the Taser to a less dangerous firearm.

Americans generally think of Mexico as a violent place, at least relatively to their society. Here's an interesting fact: "80% of guns in Mexico originate from the US".

The easiness involved in getting a gun makes it the weapon of choice for disturbed Americans, especially teens going through their more turbulent times, to commit suicide or harm others.

The majority of firearm deaths in the US are from suicide, a number around 70%, the same percentage representing homicide as a cause of gun deaths in other developed countries. Nearly half of all households in America have one of more firearms. One in three American households has a handgun (i.e. one could also consider it a gun not used for hunting or sport, more likely for crime or 'self defense'). Around one in ten of the at least 200 million guns in the US are used for hunting purposes.

However, in some categories violent gun deaths have dropped in the United States, and more regulation of certain types of rifles, namely semi-automatics and automatics, along with more locking features and child protection, has played a role. In the United States, the lifetime odds of dying from suicide by firearm is, as of 2003, one in 222; of assault by firearm, one in 314. There are over or around 30,000 deaths by firearm each year in the US.

Back to the Virginia Tech shooting: there was administrative incompitance abound as it took two hours for students to finally be alerted of the first shooting event. By then, it was too late. There is an investigation into whether the primary shooter of a confirmed 30 people (killed) had an accomplice in the first shooting, which killed two.

For some legal analysis, see Jack Balkin's timely overview of the Second Amendment of the US Constitution and how it relates to things like the 'war on terror'. He concludes:

Although there are abundant rhetorical similarities, I don't think that the issues arising from the Virginia Tech shootings and 9/11 are at all the same. What I do think they have in common is a tendency for overreaction: a tendency for salience-- and a sense of emergency-- to displace good public policy. If there is anything we should have learned from 9/11, it is that a sense of emergency can justify all sorts of bad decisions that we will come to regret later on.

Although Michael Moore is usually just annoying, this humorous-yet-informative cartoon scene from his documentary Bowling for Columbine is interesting, and funny:


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