Maybe They Never Really Meant It

"Ah, the Warren Court," the civil libertarian/criminal defense lawyer says with a rueful sigh. But maybe what he should be saying, in frustration, is more like, "Damn that Warren Court." For the same reason, of course.

A couple of years ago I was the guest lecturer in a law school course on the First Amendment. I was talking about Morse v. Frederick, the Bong Hits 4 Jesus case, when a student asked the obvious question: Why doesn't Tinker apply?

That's Tinker v. Des Moines Independent School District, of course, the case where Justice Fortas explained that neither students nor teachers

shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Except, of course, they do.

The problem wasn't that Fortas didn't mean it. Maybe he did. The problem was that the Court didn't mean what followed from it. Because if students (and teachers) don't shed free speech rights when they enter the school, then what follows is that they have those rights. And then good order and discipline and restrictive rules and "Who's in charge here, anyway?" all go by the wayside.

Because, you know, free speech is disruptive. Oh, sure, Tinker says that free speech is fine as long as it doesn't disrupt. But if it can't disrupt, it can't be free.

I'm not talking about the disruption that comes with interrupting the math class to stage an in-class rally against (or for) sending more troops to Afghanistan. (Which is maybe what Fortas had in mind.) I'm talking about the disruption from the school administration that fears (or actively opposes) expression of the disapproved idea.

So the schools penalize students for the politically or culturally charged statement in school - the pro-Christian anti-ACLU shirt or the anti-gay one. It's the t-shirt honoring a victim of gang violence or supporting same-sex marriage. It's the school's control over the school newspaper content. And of course it's Bong Hits.

And while the Court has so far stayed out of the t-shirt cases, it's happily waded into the others to say, essentially, don't believe too much in Tinker. Why? Because we liked the line about the "schoolhouse gate" when it helped us rule for Mary Beth Tiner, but we don't like it if it means students can exercise free speech about things that offend us.

Day 1 is the rule. Day 2 is the retreat.

Then there's Miranda v. Arizona. You think you know the rule because you hear it on TV all the time.

You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in court. You have a right to speak with an attorney. If you can't afford an attorney, one will be appointed for you.

But that's not really the rule. You don't know the real rule unless you work with it in the courts. Here's the real rule.

You have the right to remain silent, but the right doesn't count unless you flat out refuse to say anything. And you have a right to consult with a lawyer before any questioning, but that right doesn't count unless you say, explicitly, that you will not answer questions until you have spoken with a lawyer. And none of this matters unless you are in custody, whatever that means. And it doesn't matter, either, unless the government actually tries to use what you say against you at trial. Oh, and when you're arguing about what actually happened when you were questioned, the judge will believe the police, not you.

That's the real rule because the Court really doesn't want to see confessions suppressed. It wants a rule it can point to, a line it can say the police cannot cross. And then it wants, as much as it can, to give police free rein to cross the line. (Yes, there were some decisions actually advancing Miranda in the early days. That time is long gone.)

The problem was that the Court never really meant what it said. Warren's effort to cobble together a unanimous Court for Brown v. Board of Education required that he concede the game was hopeless a year later by insisting upon compliance "with all deliberate speed" rather than right away.

Litigation is a messy business. What the Supreme Court says goes exactly to the point where it no longer does. And the lower courts do what they want, mostly with impunity.

We honor the opinions that celebrate our freedom. Brown and Tinker and Miranda gave us much. But not nearly so much, and not nearly so lasting, as they might have.