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Attorney & Prof. Mike Igoe- Student's Rights/Free Speec h

Mar 16, 2014|

in light of the Grand Island NRA T-Shirt Flap

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-- -- -- Buffalo's early news with John -- Susan rose and the entire WB EN news team news radio 9:30 AM WB and. -- -- -- news radio 930 WB and last segment we're talking about things in school in terms of common core curriculum this hour -- the next half hour before Meet the Press comes your way at twelve noon. We're in the kicking around student expression. How many rights does that he would actually have in school. Do today. Because they're miners have to submit when a teacher says take up that teacher -- it has in an Harry logo on. Obviously we're talking a little bit about the Grand Island schools this week and change Kenny Shane is a sophomore there. Earlier this week he came to school wearing a sweatshirt that said protected by Smith & Wesson. School officials told him to remove that he took that went off underneath was a T shirt with the arrow logo. And the NRA although he hasn't seen it. Is basically an eagle -- -- but behind the COR two crossed guns. The district said guns or something we don't necessarily think there are good for kids to have. Therefore take bets -- off for turning inside out or cover it up. He said no. He was asked to do this before and he said no then. So now they turn around and say well that's in subordination. And basically we have the right to dictate to you not so much what you where not so much of freedom of expression. But when you and up defying an order from a teacher let's kick around the broader issues here let's bring in an attorney and -- journalism professor. Mike I go you might remember -- my mr. money back in the day on channel two WG Jersey. These days he is an assistant professor of journalism effort only state university. He teaches communication law there and there's there's a part of it here the idea of what it's right to communicate enough. He is also an attorney and how -- you you're just back recently not not immediately in the past couple weeks. But you also taught English over in China for awhile I. It's a media law in China which was a Communist countries -- another perspective on the first members -- I should also mention of parents against fourth things holiday first amendment's affect my life all great reasons to have you here. Talk to me about what a student can get away -- I'm a kid in my -- I automatically allowed freedom of expression or as as I think you're going to tell me. There are court case desire that say kids can't do what. Whatever -- they want. -- one thing we have to talk about the First Amendment it's not an absolute right -- -- he qualified privilege. Once upon a time and mr. justice black of the Supreme Court used to pull out this couple little piece of the constitution says well he says congress is no law and things have changed. Now especially with the student issue. That is definitely evolved over the years there have been cases this they've basically students put up. Yeah although originally that was not the trend back in the 1960s the first case dealt with someone wearing student -- and the supreme courts and that's fine. Because students do not -- the first amendment rights when they can preschool that was another case of more recent case. A student a teacher Donaldson George Bush international terrorist same situation the Supreme Court said that's okay. But then the pendulum started to shift I think a lot of it has to do to make of the court there was one case involving student newspaper that had an issue of teen pregnancy. -- said boy this may be a problem with stool because you know we don't exposing a chill in the sixth Canada and a and a couple other cases. Bottom line is in a letter to case called the Morris case where student trying to put on a banner that said bong hits for Jesus it was during the Olympic Torch run. And students claim that was just to be funny they wanted to get on TV but the school district had an issue with it. And they complained and eventually the United States Supreme Court and the Supreme Court -- in this case. Yes anti drug messages were legitimate school concern even those student claimed that was not the reason behind it and they want to school district. Now we think the whole body of case law there's been one major trend. -- -- Juvenile is did not know the exact same rights as adults under the First Amendment that's the one character under eighteen and in a school -- is that -- his -- that that are exactly right and then the second part of that problem is exactly what you just said now students are giving our high school districts are given broad discretion to dictate policies that lead to. Decorum education standards that -- -- someone. So in that respect the whole pendulum shifted entirely. Now school districts are given a lot of discretion so students don't have the rights that you and I. Exactly right however. There's another way of looking and -- issue here. The Supreme Court is also clearly say even though students do not have as much rights as adults. When he comes to content based restrictions. That could be a problem. So if some would argue his case for example NRA. They could say that this is a viewpoint based discrimination not orderly -- discipline -- Similarly when -- said earlier about George Bush international terrorist if the objection is to contact and then they might find themselves sued but the objection is to watch. What's the other side of that that gives and the right to restrict -- also say it's all they can build good enough case about you know school orderly in his discipline and so it's okay but if it seems to be and it's over a subjective and it's all how the court and the jury finds it and that's the problem. On this particular case is a little bit -- twist here because. The shirt to the studio and on the second case is apparently the official and our local -- crossed guns but nonetheless the official yet it is their -- it's not really single out and shoot somebody and -- the NRA was our -- they'd probably say we're you know we're responsible organization done about it and that's what it's all about -- the one side of the -- would be. This is a content based discrimination and decide is this -- school learning discipline and it's a balancing act which is what all these Supreme Court case is -- world. And I'm sure if statements from a district are probably run by a lawyer. It's interesting to note that the three statements that came out this past week from Grand Island schools and I'm paraphrasing but basically said. He was not suspended because of the content of his shirt they went on to say he was. It was not because it was in an irate shirt. They suggested they didn't exactly say. It's because he was -- Portman but but but clearly they wanted to make the case for a discipline issue rather than a content issue. Yeah exactly right because one of the things about both Supreme Court cases regardless of who is involved with Supreme Court has been very clear that content based discrimination are not permissible. Most content is free with a few exceptions obscenities not protected speech. A defamation is not protected speech copyright infringement a few of the things fire and theater a particular part theater they're all the types of things that are not protected. But the Supreme Court -- say if you restrict content there's a couple things have to happen you have to prove a compelling government interest something it's real important. And also you got to show that the law is narrowly tailored so it doesn't restrict more speech and necessary so obviously that's why the school district he's saying very clearly. It's not about content it's about orderly and it's discipline Enceladus. Journalism professor Mike guy go from offered only a state colleges here for -- state university if the -- these days. 8030930. He is also a member of the bar and attorney. And as someone -- talk a little bit about some of the rights that both students and school districts have let's bring in a few phone calls John in Rochester it's your turn now -- A -- in Mike good morning. You know I was just wondering -- -- what European and the fact oh what are the school's all universities. In school systems in general especially ignored these. Firearms. Administered. By. What -- played by individuals. On how to. You think some of this. Proposition. Is. They're prejudiced against right wing causes like the NRA. If they go out there that could be a problem in the school system and how this. Our First Amendment is is protect. Well you know Dave is right on the money he needs releases a news release to district clearly stated it's not about contents about discipline and that's the balancing act you know when a court looks at these cases -- jury gets them. They're going to consider. Who has the better first amendment rights it's always going to be weighing -- cold and hard balancing what if if that discipline is based on some perceived discrimination because of the content. Doesn't the kids that have a case to say. -- I'm I'm allowed to speak up here this is not a discipline you're absolutely right and factor actually have been some other cases in which students. But the war actually they were given the right to where there's a number of cases that are coming to this case at all depends on the facts of the case and of course how the judge your. And that's their output which had done it I heard interview with sure I'm not on Friday. Particular Friday in indicate that some students say grant that or. Sure they're promoted. Marijuana. And they were not prohibited so you think there could be a the issue of between those two cases is that if if if I heard it right amateurs Yorker writer. Yeah absolutely sure you're asking whether whether. Content judgments are based on the bias of the school you're suggesting it's a biased toward the last. Yeah exactly right because a school this figure anybody for that matter cannot single out a certain type of speech and -- was a case involving is in Saint Paul, Minnesota where there's an ordinance against anti Nazi activity and it was specifically targeted towards nazism. And that's -- known in this particular case would be the same thing. So they're saying NRA is not permissible. But marijuana he is you know. By by by definition is just because they didn't do anything about it's kind of a form of consent if you think about it cigarettes look right and if that ended up being part of a court case that. That would be an issue of course it's all -- your attorney argues the case and how to judge. All right coming up on the other side of the -- couple more phone calls were talking with Mike guy go he is an attorney he's a journalism present professor -- for don't yet. He's the guy used to seat back in the day met when I worked there he and I were together channel two. And we're talking more about a student rights and particularly that an IRA flap over a T shirt on Grand -- more to come it's hard line on news radio 930 WB. Read the news online. At WB EN dot com it's. Hard right. Radio 930 WV and coming up at twelve noon give or take. It has been a tough week for the White House first fault president Obama's approval ratings new low there. And then there's that democratic lost a special election down in Florida some say that could have all sorts of impact on the mid term elections. So on Meet the Press coming up they kick that all around. With White House senior advisor Dan Pfeiffer. Of course also on the agenda there. The situation in Ukraine today is referendum day will they succeed and become. More or less part of the Soviet Memphis it was a qualities as the Russian Russia and the Russian Federation. More of that with Meet the Press coming up we're continuing our discussion now with Mike I go. He is the guy you used to see on channel two way back when their consumer reporter mr. money. But he is also on the other side of the -- that I don't think a lot of people know he is also. A member of the bar he is an attorney he teaches communication law these days effort don't -- state college. Andy's here to take your calls were talking a little bit about the and I rate case in Grand Island and let's go to Grand Island this next call. Rus Thompson is here -- is active and pretty much everything Grand Island he is also. A big supporter of the Second Amendment and someone who first brought this particular case to the eyes of local media. Russ thanks for calling -- Yeah that's what we -- I just wanted to clarify one thing I'm. First of all chain had warned that screen T shirt to school on numerous occasions in the past and I had never asked him to take the shirt off. Secondly the day of this. Is that what we're talking about the tortured on. They kept it to take this lecture off he took off that he gave it to his mother now the teacher yet on underneath. Base he basically act and that it sure it was okay. They looked at the. Who is the week and a teacher in that initial class. Yeah a teacher is the vice principal. And then a little bit aren't -- I'm not exactly sure what approached him about it was the most sensible approach him. -- said you need to take that Chertoff dreaded inside out of it make it up. And he said no they get all that that picture was okay. And they called him at that point yet he's not now with basically in subordination and they suspended and. So is it is is air quotes rebellion here was because he was saying hey earlier. I was told this is okay. And he had one picture of numerous aren't people there and there was no problem with the shirt. But if you look at the NRA although that are there you get to black smoke while people that are kind of. There's no -- you can that you could even -- really go by people. Unlikely arrest that sense that's the official NRA local that would go to the thing that I talked about it this was based on content and actually in this case to go to court. What you said would be true wide it is suddenly changed their stance. And if there are other things that are getting left unattended to -- -- dealer caller suggested that could be a telling effect in the case to again it's all about. What the judge and forgery picks up on these cases because it can be very subjective obviously. In this statement that came from the schools. At that at the end of the week they actually came out with three of them because media and continue to build. In the final statement the superintendent also said something to the effect and this gives us and I'm paraphrasing this gives us a chance to review policy here. Do you think this will reach the school board at the next meeting. Our -- well we're going to be there and in numbers so. I think it'll -- I think there's a real plot because you've got that get a grip gray area in the end when we talk all the was actually reading. The the statute or the cold. You know it's like okay what -- beat it was going to be a decision maker here. You know because that you can't have that but it's so premier it has its funny sort immediate dislike. Okayed it when you got a generic statement like that it's all gonna be who's -- immediate or rather it. Well that's the bottom line when it comes to the legal process. All speech has to be treated equally elicits obscenity and other certain things that are just clearly forbidden by the First Amendment and in this particular case. If he was treated differently than other students -- -- the content that might be objectionable the educational process then there is a problem here. Yeah so you gotta you gotta -- -- little things that went in wearing this year forward no problem at all and they're wearing at this time -- -- Then telling him -- that -- picture it was OK but as soon after -- take up sure he didn't pick up the shirt so that's where they -- and -- And it didn't substantial things going on there really happened. We have we got to figure out exactly what -- -- you on this that -- All right and and you continue to say that this was based on the content you think that's what's at -- here. Yes I do OK -- I think one of the I think one of the administrative what was insulted by it and then that was probably years you won that suspended. All right -- thanks for joining us good stuff thanks. As we mentioned content based discrimination is clearly illegal from the supreme court's point of view but in our -- closing moments here more broadly that this is the part that kinda surprised me. However I see something new I have to point what's it look. It's to own rights in a general sense talk more about the pendulum that you spoke at the beginning of the program student writes in a general sense. Are being diminished all the time exactly -- is the school can build a case for orderly in his discipline anything it's part of the educational process they probably will win but if someone else can prove that there's a content based discrimination and it's gonna go the other way but definitely. The pendulum -- swung pretty much anti student and pro education at this point in time. Now in order for this to end up in the courts with the parents have to take it with the NRA be involved. What kind of scenarios do you picture as this case moves down the road but just about anybody can -- -- -- and bring it forward but the question is that's what's gonna come down to content based discrimination -- Educational disciplines like -- and so what the judge -- also on the case is presented could see it going either way frankly court isn't practical to even think. Parents can do this -- Who know the NRA might may -- what would. -- other cases how does that play so many earlier Supreme Court cases were in fact brought my parents it's many different groups groups and engine it could be just about anybody who rented Ford. Shall we shall sleep and it would start out initially in a State Supreme Court how to. It all depends on where you file an -- obviously any court can he can keep going through the process the bottom -- of course the Supreme -- US Supreme Court only -- less than -- hundred cases -- -- so it's very -- -- go that -- and frankly I don't think the Supreme Court wants to -- these cases they -- and decided to local community -- -- really it's just like -- it's my take miniature because they feel community standards exactly -- it's very much akin to the obscenity cases community standards and the video -- cases -- they really don't wanna decide what's appropriate for particular community they want to leave -- -- they just don't wanna open a can of -- what's the what's appropriate in Salt Lake City, -- Would not necessarily be appropriate in New York City exactly right the video games are perfect example like you know once the manufactures put the readings on the label it took -- That discussion out of the courtroom because now -- you're a parent you've got to abide by MR PG or whatever and that's kind of akin to this case as well. All right Mike great -- this is fun. Thank you thank for having me. It will have him back promises been real fun time coming up again.