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 and Black Lives Matter, 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 picture 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 downside 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 held 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 this 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.
That this is an outrageous decision by a rouge alt-left judge is obvious, HOWEVER, I’m tired of the “all lives matter” mantra. The point of “black lives matter” has gone over these peoples heads. The movement should have been named “Black Lives Matter Too”. What they are really saying is, black lives matter as much as white lives, not that only black lives matter! I mean, common sense people. Now, I don’t agree with the need for such a movement, but dang,… way for butt-hurt people to miss the whole point.
Maybe sloganeering isn’t the best way to live one’s life?
Maybe it’s not so smart to reduce reality to a bumper-sticker phrase?
Black Lives Matter — Age of Rage — Where’s the Beef?
The entire point of the “black lives matter” movement is to pretend that there is anyone who thinks black lives don’t matter. And particularly to pretend that police think black lives don’t matter, are going around gunning black people down for no reason, are killing black people in circumstances where they would not kill white people, and that a black person going about his lawful business has to worry about a policeman killing him. And none of that is even remotely true. So BLM is a vicious lie.
I haven’t read Mr. Turley’s book but do appreciate the idea of functionality of speech as a differentiation of the thing itself.
I like B.B.’s little cocoon people and I hope Becerra complimented her for that drawing or are those color swatches like paint swatches?
BLM is in the color lesson and not having read the opinion and arguments BLM is a commercial entity involved in commerce. Does Becerra have an invested interest? By commerce, commerce is defined by money changing hands and used for purchase of goods and services.
Thank you, Mr. Turley, for exposing the case.
PS: I like your cocoon people, B.B.
As soon as I started reading it I knew, for a fact that it had to be out of California. This is not a judge. He is a social activist from the extreme far left.
Children in elementary school have traditionally been sheltered from adult themes, whether politics, sexuality, consumerism, and all the garbage being served up on the internet. Young minds are still developing, and are not ready for adult “free speech” infospaces.
That said, parents must keep school staff from preying on these young minds with their version of adult themes.
“Black Lives Matter” is not appropriate for elementary school students.
The judge is partially right in this case: elementary schools are not to become cauldrons of adult conflicts and culture wars, and that means they are not adult free speech venues. That said, children should be taught to become independent thinkers, but also that some impulses are anti-social and not to be acted upon (i.e., biting, hitting, insulting, hair pulling).
This matter should not have risen above the school and the students and parents involved. Or, do you want kids to grow up believing adults hate each other, and that is what they have to look forward to? Adults gotta start acting like adults, using adult skills.
Yes, I read about this case even before it made it here. I agree with it being an outrageous decision on free speech and especially in light of the innocence of the child in actually showing that she understood and respected the diversity of her class and friends. “No good deed goes unpunished”. Not mentioned is the particularly inappropriate humiliation of the child by making her stand in front of the class and basically apologize to everyone for her innocent act of being kind. And no one even told the parents about this humiliation. They found out nearly a year later from other parents. This can not stand. Sometimes children need discipline but not for being kind and thoughtful and humiliation is never the appropriate form of discipline. If anything it harms the individual even more severely and may provoke even worse behavior.
I have taught in medical education and the professors that I hated the most were those that tried to teach by humiliation. That guaranteed I would never do that. Discipline is carried out 1-1 and not in a humiliating manner and in private. The point of correction or discipline is lost with humiliation and you just developed an enemy who will never likely work with you again and actually work against you.
We tried humiliation of the losers after WW1 and then we tried magnanimity after WW2. I ask everyone, which was the better route.
Free speech is another matter but I thought that which accompanied the discipline was important to know about and place also into context.
PARAGRAPHS, PARAGRAPHS, YOU SERIOUSLY NEED TO USE SEVERAL PARAGRAPHS IN YOUR COMMENT!!!!
I’m not sure someone that writes in all caps and uses 4 exclamation points should be criticizing someone else’s form.
It seems the kid who posted the sign has free speech rights, but the other who appended it does not. The judge should judge using consistency, not opine by personal prejudice.
My understanding is that BB made the entire picture; it’s not acceptable either way but she didn’t even take a school handout and change it by adding her innocent comment.
I’m calling out the parent who filed a complaint with the school against a seven year-old for being politically “insensitive.” My God, even by California standards, that parent must be a real pill!
If this same judge had been asked if this person had rights to gender transforming procedures at that age, what do you think the answer would be?
that’s too easy. We know what the judge would say…. Yes the child does have the right to change his or her gender without letting the parents know. That is the number one reason Elon musk said he’s moving two of his largest companies out of California, ASAP.
If, as the judge apparently believes, an elementary school is not a marketplace of ideas, then how is it permissible for another student to make the original BLM image. The difference in the treatment of the two seems to take the principal’s action from keeping politics out of his school to keeping only one side of politics out of his school. That is political action on his part and the school board would be justified in sacking him. The principal has introduced politics into the school and yet argues he is keeping politics out of his school. Sounds a little like “Defending Democracy!!!”
What’s with you Turleyville opinionators and your love of multiple exclamation points?
At what kindergarten do they teach that form of punctuation? If you’re going to make up your own rules of punctuation, why not make up your own spelling and your own words? For that matter, why not make up your own math? $9%^@*/$-#!!!!!!!
6
Steaming turd^^^^
Well said!!!!
(not really)
Come on, white people…, the whole ‘all lives matter’ trope was beyond lame the instant you invented it. But no, you insist on teaching it to your kids so they can go to school and f#$k up other kids’ pictures and stuff. Rather than complain about sanctions about your idiocy why don’t you just stop being idiots???
Steaming turd^^^
Tinker is still good precedent then? The facts as presented here appear to fail that test. I have to admit it’s been a long time since Con Law. Trying to recall whether Tinker involved wearing a flag shirt. FTR, I did have one of those back in the day b/f I grew up
Good call Whig.
From https://tinkertourusa.org/about/tinkerbio/ “As a 13-year-old student in eighth grade, Mary Beth was strongly affected by news of the (Vietnam) war. She and her brothers and sisters, along with other students in Des Moines, decided to wear black armbands to school to mourn the dead on both sides of the Vietnam war. The armbands were also in support of a Christmas truce called by Senator Bobby Kennedy that year. The Des Moines school board tried to block the students from wearing the armbands, and most of the students who wore them were suspended, including John Tinker, Chris Eckhardt, Ross Peterson, Bruce Clark and Chris Singer.”
My understanding is that it was NOT another kid’s picture, it was all made by BB.
These so-called judges are OOC (out of control). They Are Not Judge’s but They Did Stay at a Holiday Inn Express Last Night.
https://tinyurl.com/ftjb775u
“an elementary school … is not a marketplace of ideas…” That is what is wrong with public, and even private, education today.
The little girl should have written “There are 147 genders,” then the Principal would have had no problem with that.
Okay everyone — this was a child who made the remark. Guess children are now the property of the schools?! Children say all kinds of things and if we held them accountable, we would have to wash their mouths out on a continuous basis. Seems to me, free speech if for one is for all. The very fact that Kamala is running for President say ‘enough’ of the one life matters over others. Can’t have it both ways.
BTW – Biden’s speech was actually sad — he should just admit he is infirmed and can’t run and stop the pretense, No wars? Best economy? He really is living in a fable meant for children! Opps – can BB say anything about that if she can’t speak freely?
BTW – Biden’s speech was actually sad — he should just admit he is infirmed and can’t run and stop the pretense
Not sad – yet another insult is what it was. The litany of ongoing serial lies to our faces is more accurate.
And the biggest lie is he dropped from the presidential campaign by choice – when the Biden power brokers and Americans at large watched an organized effort to coerce him to leave the race. Same guy who was vowing he was in it to the end gets a two or three days of visits from Soviet Democrat leaders, party bagmen, etc. After which he magically decides that, despite proclaiming he’s the best candidate to stop The Evil Trump, he’s suddenly going to be the first president in history to drop out after having the nomination in the bag – for the good of the country.
Did Turley forget about the “Bong hits for Jesus” case? The Supreme Court ruled that school officials CAN limit speech they consider disruptive or promote offensive behavior.
Morse vs. Fredrick. The case involved teenagers unfurling a banner saying “Bong hits for Jesus” outside of school grounds and not disrupting classes. But the court ruled in favor of the school censoring the students because it “promoted drug use.” Turley was against that ruling. However that brings up the problem of students free speech rights. Do children have free speech rights just as adults do? If that is the case how would that apply to students being denied their right to express themselves when it comes to transgender students wishing to be addressed to the sex they identify. Or what about the books they want to read?
Do elementary school students have full free speech rights or are they limited simply because of their age?
I fail to see how expanding an idea to all lives requires a chimp-out and the protections against it.
The Supreme Court ruled that school officials CAN limit speech they consider disruptive or promote offensive behavior.
I can just imagine how offensive it must be to a class of seven year old children for one of those children (in the writing of seven year olds) to scrawl “all lives matter” on a piece of Black Liars & Marxists propaganda that somehow or other was also given to those seven year old children.
Black Liars & Marxists, leaders of the 2020 Months of Mostly Peaceful Rioting, Pillaging, Looting, Burning And Murder – who stole millions in donations to buy themselves multiple mini-mansions – wouldn’t offend seven year olds by giving them that propaganda. BUT… if one child scrawls “all lives matter” on that BLM propaganda… the entire class of seven year olds is disrupted and offended!
Seriously? That was disruptive in that class of seven year olds? And what offensive behavior was promoted here? A huge percentage of Americans would agree that ALL lives matter.
We should be precise rather than attempt to find excuses and justifications.
It wasn’t the classroom that was offended – at was a (sadly) Anonymous racist parent who saw the drawing outside of the classroom. That parent may have been enthusiastic about regular use of bongs at home in front of their seven year old, but Morse vs. Fredrick doesn’t have anything to do with offended racist parents at home, who AREN’T students at that school.
The question of how far 1st Amendment (and 2nd and other Amendment) rights go where age is concerned is valid. But this decision is nothing but nonsensical political activism masquerading underneath a judge’s robes.
Where do we find justification for this new right that has suddenly popped up: the right of a parent to not be personally offended by the child of other parents daring to write “all lives matter”?
The right of a child suffering from gender dysphoria not to be offended because those around them are unwilling to affirm the lie that they’re actually the other sex? Muslim, Christian, Jewish parents are regularly advised that if they don’t like what their children hear and are taught at their unionized public schools, they should consider home schooling. As an agnostic, I think that’s probably advice well worth considering. My cousin who is not Catholic or any other religion did just that and both their daughters were enrolled in a Catholic school that was the only alternative in town to public education. Neither daughter adopted religion from those years in Catholic schools, but they and my cousin are happy with the education they got. One is has been a practicing lawyer for five years now; the other is working on completing her doctorate; neither are living off my cousin and his wife.
For the offended parents and/or offended children suffering from gender dysphoria who can’t bear the pain of being in public schools that won’t affirm the lie that they’re the opposite sex, I think the advice to home school or find an alternative school willing to affirm the lie is just as good for them as it is for parents who follow a religion.
Behold, as Svelaz conflates free speech rights with “reading the books they want to read”
LMAO. What a douche.
I heartily agree that Judge Carter is dead wrong. Suppose B.B. arrived at school wearing a MAGA t-shirt or hat. Would that same principal sanction her & enforce her clothing choice removal? Probably.
1st amendments rights have zero to do with age. Somebody slap some constitutional sense into this judicial miscreant.
“ 1st amendments rights have zero to do with age. ”
Is that True though? If that were the case school’s shouldn’t’ be able to prevent school newspapers or students wearing offensive shirts displaying profanity. Profanity IS protected speech. If flipping off a cop is protected speech why is it not when a student does it to a teacher?
Are u slow, or just plain stupid? The restrictions have NOTHING to do with age. Turley covered all of this. Read the article again. Take you time this time.
Now, you tell is the difference between cussing out a cop and cussing out a teacher.
Or are you too slow, and not just pretending.
There is no distinction between cussing out a cop and a teacher. Both are public officials. Flipping off a teacher is no different than flipping off a cop. No matter what age you are. The question still is, are student’s cussing a teacher or flipping them off protected speech?
Why would there restrictions regarding age? If free speech applies to EVERYONE regardless of age students shouldn’t be censored for punished for exercising it. Nothing in the constitution says free speech rights are limited by age.
If you dont see the difference, there is no reasoning with you.
Whats astounding is you yourself made the statement about “disrupting” the classroom.
LMAO What an idiot.
Maybe the girl was being punished for her spelling?
LOL — Yet ANOTHER plug for Turley’s book. Man, I didn’t see that coming.
File this article under “How a lawyer kills time until voting for Kamala.”
subtitle: “after previously voting for Obama, Hillary, and Joetard.”
Nothing says “I really have no life” other than following Turley’s column so you can screech “He’s plugging his book!”. Because there can’t be anything worthwhile in what he wrote if he voted for Democrats.
Whatever he wrote, he must be wrong!
The book references do indeed become tiresome. But if they are the only advertisement on this site it is far better than any other blog site. Also consider that JT’s pushing the book may have been part of the contract with the publisher; perhaps they are as tiresome to him as they are to his readers.
Maybe his book is not selling well.
Well, freedom of speech only appeals to half of the country.
Not your half
hey Democrats VOTE for Fascism that is OBVIOUS
only way to STOP it…TAKE AWAY THE MONEY!
outlaw public unions from politics!