Emma Sullivan and the Big Brownback Backdown

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One student wins a right to say silly things about a powerful man. Couldn't we extend this liberty to all our children?

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The Emma Sullivan story has for the moment reached a happy place: Kansas Gov. Sam Brownback Monday apologized to the teenager his staff had tried to bully into an apology of her own, which she refused.

This sorry episode presents us yet again with the spectacle of an American child forced to grow up overnight because adults around her insist on acting like children.

Emma is from Prairie Village, Kansas, and a senior at Shawnie Mission East High School. As part of a Youth in Government program, Emma traveled to Topeka, where she had to listen to a speech by Kansas Governor Sam Brownback, a right-wing ideologue who, Kansans like to joke, is transforming their state into "Brownbackistan." What Emma knew about Brownback was that he had vetoed funding for the arts, leaving Kansas as the sole state without a state arts program. Emma Sullivan tweeted the following subversive thought: "Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot."  

But in the holy commonwealth of Kansas, no sparrow shall fall without the notice of state-paid social-media watchdogs. Brownback's staff sniffed out this verbal terrorism, and called her principal, who cravenly called her in and tried to bully her into writing an apology. Emma refused, and her story swept the Web like a fire off the Kansas prairie. Official humorlessness and hypocrisy had transformed an American teenager (an earlier tweet: "Dear edward and jacob, this is the best night of my life. I want u. Love, ur future wife #breakingdawn") into a global symbol of protest.

In response, the Governor brownbacked down: "My staff over-reacted to this tweet, and for that I apologize. Freedom of speech is among our most treasured freedoms."

Both of Emma's tweets are silly. (Among other things, Emma actually hadn't told the Governor he sucked, alas.) But so what? Teen-agers are supposed to be silly. It is adults who should be mature. Surrounded by full-grown ninnyhammers, Emma has had to grow up overnight. Her latest tweet is: "I've decided not to write the letter but I hope this opens the door for average citizens to voice their opinion & to be heard! #goingstrong."          

She's come a long way from Breaking Dawn.

Brownback, meanwhile, has become a figure of fun; I suspect the Emma Sullivan debacle will appear in his obituaries years hence. But there are Emma Sullivans all over the country --young people who must make the transition from swooning over vamps to deciding public issues. And far too many of them are squashed by Brownbackian adults.

With too few exceptions, the officious principals and humorless bureaucrats of the world regard students as blobs with no rights, whose job it is to shut up and follow orders. Far too many people are willing to go along with this, because much of what teenagers have to say --even when they are being serious -- is closer to "#heblowsalot" than to "#goingstrong." 

But if society doesn't protect their right to silly speech, how many of them will ever have anything serious to say? 

The law of student speech was set in 1969 by a case called Tinker v. Des Moines Independent Community School District. In that case, students were suspended from school for wearing black armbands to protest the Vietnam War. The Court memorably wrote that neither "students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"and that school officials could not punish speech without showing the likelihood of "substantial disruption of or material interference with school activities."

But in the years since, conservative majorities have tinkered with Tinker. It seems more and more that, while the First Amendment may protect silent, dignified "speech" like a black armband, all bets are off if the students speak like, well, students. Consider this message: BONG HiTS 4 JESUS. Consider a student nominating another student for school office with a speech saying, "I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm ... a man who takes his point and pounds it in. ... who will go to the very end -- even the climax, for each and every one of you." Consider, for that matter, student-newspaper stories on teen pregnancy and divorce. In the years since Tinker, the Court has upheld punishment for all of these "offenses" by high school students.

In the most recent case, Joseph Frederick, a latter-day Jeff Spicoli in Anchorage, Alaska, unveiled a banner with the thought-provoking "BONG HiTs" legend in front of Juneau-Douglas High School in 2002 just as the Olympic Torch was being carried past the school. School officials confiscated the banner and suspended him. Morse admitted that he just wanted to get his silly banner on television. But Chief Justice John Roberts, in an  opinion for the Court, parsed the statement with all the delicate irony of a HAL-9000 to conclude that it really meant "[Take] bong hits 4 Jesus," or "bong hits [are a good thing]," thus transforming it into a danger to every student in Juneau: "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use," he wrote. (Justice Clarence Thomas, concurring, wrote separately to suggest that students have no First Amendment rights at all.) 

This Court, as I have  written before, has embraced the doctrine that the First Amendment protects "the thought that we loathe." (While in Topeka, Emma Sullivan was not far from the Westboro Baptist Church, whose homophobic war-veteran funeral-picketing was quite properly held protected by the Court in 2011 [pdf].) What about the thought that we just think is silly or unwise? It's what young people often utter; we gag them at peril of damaging the adults they will become.

With the advent of the Internet, schools have begun trying to control their students' speech even off campus, on the grounds that it may  cause disruption on campus if tolerated. A circuit split has developed over this longarm censorship. The Court  denied cert. a few weeks ago in a case that upheld discipline where a student wrote on an off-campus blog that her school officials were "douchebags" for canceling a school music festival, and encouraged readers "to write something or call her to piss [the principal] off more." Pending is another petition seeking review of a Fourth Circuit decision that a West Virginia school could discipline a female student who formed a MySpace chatroom devoted to discussion of the likelihood that another student had genital herpes.  The post hurt the victim's feelings, but caused no real disruption at the school. Nonetheless, a Fourth Circuit panel held that the school could discipline her because it might spur "'copycat' efforts by other students."

I would think either of the mean and silly utterances at issue would form a suitable subject for a school assembly. That would honor Justice Brandeis's famous dictum that "[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." I don't see why more speech won't work for students as well as for adults.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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