Why Emma Sullivan Is Good for Democracy

Since time began, sassy teenagers have been putting authority figures in their place. The way we respond to them says a lot about the society we hope to build.

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One thing I've learned from the Emma Sullivan flap and the reactions to my recent post on it: a lot of people think it's scarier for a teenager to wise off to her friends about a powerful man than for a governor to try to bully a teenager. The comments on my piece included a number of people who really can't understand why anyone should object to the gentle guidance offered to Emma by the governor's office ("Shut that girl up or you'll be sorry") and her principal ("Apologize to the governor or you will be punished"). But it's taken for granted that tweeting "#heblowsalot" to her whopping 65 followers constituted the worst Kansas emergency since the sack of Lawrence in 1857.
Ruth Marcus of The Washington Post concurs. "Emma Sullivan, you're lucky you're not my daughter," she clucks, the only part of the column with which I agree wholeheartedly. "[I]t was perfectly appropriate for the principal to explain how her attitude and language during an official trip reflected poorly on the school," she says primly. ("Explain" being the adult term for "threaten.") If she were Emma's mom, she would have taken away her smartphone and forced her to write the damned apology, and no backtalk, missy.
What in heaven's name did Emma tweet -- again, not to the governor's face, but to a few friends -- that threatens the Anglo-American edifice of ordered liberty? She said of him what teenagers since time began have said to their adult rulers -- indeed, what the good of society demands they say from time to time. In the words of Lewis Carroll, her tweet meant, "Who cares for you? You're nothing but a pack of cards!"  I think any American governor ought to hear this sentiment at least twice a day.
I can't help wondering whether any of these benign spirits have ever found themselves looking at the barrel of school, or state, power for the offense of saying forbidden things. I have. It was a different time and a different place, but I will never forget being told by my headmaster in 1968 that I would be expelled from school, and have my college acceptance rescinded, for making a public show of regret that Martin Luther King was dead.
It only takes one incident like that to change your view of adult "guidance" and "explanation." Because of  that experience, I think, I would have said to any child of mine caught in a similar vice, "What you think and say to about politicians is your business and not theirs." Because of that experience, 40 years later, I'm a First Amendment specialist instead of holding a real job.
But as a First Amendment specialist, I think the way we treat the Emma Sullivans of the world matters quite a lot to the kind of society we build. "Talking's something you can't do judiciously," says Casper ("The Fat Man") Gutman in The Maltese Falcon, "unless you keep in practice." And more and more I wonder where Americans are supposed to keep in practice. Free speech can't take place nowhere; it needs places to be uttered and places to be heard.  Adults want high schools to be speech-free zones, and more and more the courts agree. Employers want the workplace speech-free zones as well. The law supports them. Recently, the Supreme Court held that the First Amendment doesn't protect even public employees who say things on the job that their employers don't approve. During this term of the Supreme Court, lawyers for a church school argued that religious bodies should have the power to fire employees who report child sexual abuse, as required by law.
So, no training in talking while you grow up. No talking on the job once you're grown up. Take down that cheeky tweet. Clean up that Facebook page. What about college, where students are supposed to speak their minds and follow truth wherever it may lead? Well, sure, as long as it's, well, decorous. "University officials have generally bureaucratized and limited assembly and speech on campus," notes Timothy Zick of the William & Mary Law School, author of Speech Out of Doors: Preserving First Amendment Liberties in Public Places. "Many campuses have adopted 'free speech zones' and other restrictions."
The "free speech zone" is a marvelous invention in which certain parts of the campus are designated for expression. Gradually the rest of the campus is then shut off from bothersome protest and agitation. It's an elegant way of making the First Amendment disappear: under that antiquated document, "the freedom of speech" is guaranteed everywhere in public -- unless there's a very strong reason why it can't be allowed. "We don't allow no free speech over this way," isn't a good reason, any more than any other part of the Constitution can be voided by saying "this isn't a due process zone."
And once free speech is zoned, even the "zones" may not be quite so free as all that.  At one campus I taught at, a graduate student went to the "free speech zone" and delivered a piece of performance art beginning "Fuck you, fuck your friends, fuck your parents . . . ." He didn't get much further before a campus cop told him, "You can't talk like that in the free speech zone," and led him away in handcuffs.
As we learned November 18, administrators at universities like the University California Davis are like administrators everywhere else. The campus cops pepper-sprayed those bothersomely peaceful students as if they were a nest of hornets. The resulting outrage took the administration by surprise; college administrators, in my experience, don't put up with a lot of back-talk from students or faculty, and usually can't believe it when they are finally forced to listen.
What about parks and streets, which, the Supreme Court once told us, "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions"?  Well, there's a battle on there, too. The Macy's Thanksgiving Day Parade is one thing; Occupy Wall Street is another. As Zick notes, "The occupiers have demonstrated the critical need for public gathering places and officials, with some notable exceptions, have tried to respect citizens' First Amendment rights to assemble and speak in public forums."
Those exceptions really are notable, though. When Mayor Michael Bloomberg's patience ran out, police moved in -- and reporters who tried to write down or photograph what the cops were doing risked pepper spray or the business end of a billyclub. It's not our business.
OWS's struggle for public space -- space to question the very economic foundations of our system -- illustrates the dwindling scope of free speech in our regimented, "watch-your-potty-mouth" society.  Free speech is less and less a personal right of the Emma Sullivans laughing at governors, and more and more a property right of powerful institutions -- political parties, churches, media organizations, corporations -- deriding and silencing their critics.
Or to put it in terms the current age might understand, if Emma Sullivan wanted to use her First Amendment right to make fun of Sam Brownback, why didn't she just form a corporate SuperPAC and buy TV time, the way James Madison intended?