District Court Judge David Carter delivered a crushing blow against free speech rights in elementary schools in an outrageous case out of Orange County. Principal Jesus Becerra at Viejo Elementary punished a seven-year-old girl named B.B. in the lawsuit for writing “any life” under a “Black Lives Matter” picture. Judge Carter issued a sweeping decision that said that she has no free speech rights in the matter due to her age and that the school is allowed to engage in raw censorship. He is now being appealed.
The message from the school seems to be that black lives matter but free speech does not. The school found a kindred spirit in Judge David Carter.
After a lesson on Martin Luther King, B.B. gave her picture to a friend, believing the inclusive image of four shapes of different races and the words would be comforting to a friend. However, when that child showed the picture to a parent, a complaint was filed that B.B.’s pictures was insensitive and offensive. Becerra responded by disciplining the child for her inclusive picture.
Becerra should be fired, but his extreme views and lack of judgment is hardly unique in education. The far greater damage was created by Carter’s opinion.
Judge Carter ruled that B.B. has no free speech to protect due to her age, but that “students have the right to be free from speech that denigrates their race while at school.”
Judge Carter added that “an elementary school … is not a marketplace of ideas… Thus, the downsides of regulating speech there is not as significant as it is in high schools, where students are approaching voting age and controversial speech could spark conducive conversation.”
The court leaves a vacuum of protected rights that he fills with what seems unchecked authority for the school: “a parent might second-guess (the principal’s) conclusion, but his decision to discipline B.B. belongs to him, not the federal courts.”
The Pacific Legal Foundation, has now filed a petition with the U.S. Ninth Circuit Court of Appeals on behalf of Chelsea Boyle and her child,B.B.
In my view, Judge Carter is dead wrong, though I expect he will find support among some of the judges on the Ninth Circuit.
The Court applies the famous ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), as a license for sweeping censorship and discipline. Yet, the Court in Tinker that students have free speech rights and that any restrictions require evidence of “interference, actual or nascent, with the schools’ work or collision with the rights of other students to be secure and to be let alone.” It then imposes a high standard that it must “materially disrupt[] classwork or involves substantial disorder or invasion of the rights of others.” This disruption must be “caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
However, what is more disturbing is the disconnection of the right from anything but a narrow functionalist view of free speech. In my new book, “The Indispensable Right: Free Speech in an Age of Rage,” I criticize the functionalist approaches that tie the protection of free speech to its function in advancing a democracy.
I argue for a return to the view of free speech as a natural or human right — a view that was popular at the beginning of our Republic but soon lost to functionalist rationales. Those rationales allow for the type of endless trade offs evident in the Carter decision.
Carter’s functionalist or instrumentalist approach makes it easier to simply discard any free speech rights in elementary students. In my view, they have free speech rights as human beings as do their parents. Under Carter’s approach, schools can engage in a wide array of indoctrination by declaring opposing political and social views to be “disruptive.”
Ironically, my book criticizes Judge Carter in another case over his failure to consider free speech concerns. In his decision in the January 6th case involving John Eastman, Carter dismisses his arguments that he had a right to present his novel theory against certification of the election.
While many of us disagreed with Eastman, there was a concern over efforts to strip lawyers of their bar licenses and even use criminal charges against such figures. However, what concerned me the most was sweeping language used by Carter in his decision.
Carter’s narrow view of free speech and his expansive view of state authority is hardly unique. B.B. is devoid of free speech protections even in his outrageously abusive case. The reason is that she is not of an age where her speech is viewed as worthy of protection. It is an example of the distortive and corrosive effect of functionalism in free speech jurisprudence in my view.