Like most people, I've been pretty much ignoring the Jon Birch Society for the last few decades; if any group seems to be an anachronism today it's them. But they actually do still exist and they even have a blog, where Selwyn Duke posted an egregiously stupid response to the court ruling involving an anti-gay principal suspending students for supporting a gay student he had unconstitutionally harassed.

A judge ruled that a Florida principal violated his students' free-speech rights by squelching pro-homosexual messages. He blasted the educator for misunderstanding the First Amendment, but who is truly ignorant of it?

The answer, as you will soon see, is Selwyn Duke.

If there ever was an example of inmates running an asylum, it's the modern government-school system. Thanks to numerous court rulings, students can now buck authority with the freedom to wear clothing and espouse political and social messages that their school - perhaps reflecting the wider community's standards - deems objectionable.

Imagine that. By Duke's reasoning, the first amendment itself allows the inmates to run the asylum, since it protects the right of every American to espouse political and social messages that the wider community deems objectionable. An observant person might even note that this was the very purpose of the first amendment. I'd be curious to know what Duke thinks its purpose was.

An example of this has just played out in Ponce de Leon, Florida, as a lesbian student named Heather Gillman and the ACLU have just won a $325,000 judgment against the Holmes County School Board in a free-speech lawsuit. At issue were the actions of former Ponce de Leon High School principal David Davis, who led a "relentless crusade" against homosexuality, according to U.S. District Judge Richard Smoak.

No, Mr. Duke, you have your facts wrong. The judgment was not for $325,000; the judgment was for injunctive relief, which was granted. The money was not a part of the judgment, the money was a reimbursement for legal fees. Under federal law, anyone who sues the government over a civil liberties issue and wins gets to have their legal fees reimbursed. Congress had this crazy idea that citizens shouldn't have to bankrupt themselves to keep their government from violating the constitution.

I can't think of anything more laughable than describing students as "dissenters." Governments have dissenters; politicians have dissenters; political parties and organizations have dissenters; but schools' charges are children, individuals over whom they have dominion while class is in session.

And public schools are government institutions; governments, as Duke correctly notes, have dissenters.

However, I understand that if such a system is to exist, teachers and administrators must have the authority necessary to maintain order. This is why it was long understood that when children are placed under the care of others, those individuals act in loco parentis, meaning, in place of a parent. (If some find this unacceptable, they should homeschool -- I heartily recommend this, by the way.) Thus, I would no more call children who object to their principal's rules "dissenters" than I would those who object to their parents' rules. I would label them something else: disobedient and rebellious.

Right. Anyone wanna place a wager on whether Duke would make this same argument if a student was protesting the teaching of creationism? Or if the students in this case were wearing anti-gay slogans rather than pro-gay slogans? Or if the students were wearing buttons or t-shirts protesting abortion? I strongly suspect that they would then be brave young people standing up to - dare I say dissenting from? - the oppression of those damn liberal educrats.

The problem with arguing for any kind of student expression based upon the First Amendment is that we don't ascribe to children an adult set of rights. Minors may not vote, join the military, drive, buy alcohol or cigarettes, or enter into contracts, for instance. Likewise, students don't really have free-speech rights in school (see Bethel School District v. Fraser, for instance). If I want to pepper a schoolteacher with profanity and tell him off, that is my right. But if I were 30 years younger and in his class, a trip to the principal's office would be in the offing.

I'll take idiotic arguments for $1000, Alex. Let me rephrase this argument accurately: we place some restrictions on the speech of students, therefore any restrictions on the speech of students is justified. But that's idiotic. The same is true of adults, of course. Free speech for adults is not absolute either, we can and do legitimately prohibit perjury and fraud for example. But would Duke argue that therefore any restriction on speech is justified? Of course not.

If the judiciary isn't actually granting students first-amendment rights, what is it doing? Well, our judges-cum-social engineers have said that students do have a right to certain kinds of expression. Logically rendered, this simply means that students should be allowed to say some things but not others. But this is just stating the obvious, as every school in every corner of the Earth has applied this standard. The question is, who will draw the line between acceptable and unacceptable speech?

And the answer is, as it has always been, the courts. It is the courts that were set up to deal with questions of constitutionality. Since this is a government agency regulating the speech of Americans, it is obviously a constitutional question. And I love how he seems to be surprised at the notion that some types of speech are protected and some are not. That is equally true of adults, but that doesn't seem to have occurred to him.

Just as it is the parents in the home, it should be those who act in loco parentis in the schools. This accords with a principle long embraced in American governance, subsidiarity, which states that the smallest possible unit of society that can handle a given task should be the one to do so. School speech codes should be established by school boards, principals, and administrators, not by some lawyers in black robes. What the judiciary is doing is nothing less than usurping the authority of localities. It isn't making speech in school "free" but is simply placing different limitations on it, those drawn up by individuals who have the clout to misinterpret the Constitution to serve their own ends. As to this, if Ponce de Leon High School had chosen to promote homosexuality under the guise of tolerance training and squelch criticism of it - as many schools have done - the story wouldn't have made the news and the courts and ACLU wouldn't have shown much interest in "free speech."

Duke is entirely missing the point here. The case was not about what ideas the school could express, it was about what ideas the school could prevent students from expressing. But we have lots of examples of precisely what he says, schools preventing students from expressing anti-gay sentiment. And guess what? The stories make the news all the time. And guess what else? The ACLU has gotten involved.

For example, in the most prominent such case, Harper v Poway, the ACLU joined with the ADF in arguing that the school went too far and that the student should be allowed to wear an anti-gay t-shirt to school. And I agree with them. The question is, would Duke? If he's consistent, he can't. After all, he has already declared that school speech codes should be made by school administrators, as it was in that case. Somehow I'm guessing he would not be that consistent.