Saturday, April 17, 2021

Can’t take away a ‘privilege’ by denying free speech


A few days ago, the Supreme Court of the United States issued a ruling concerning the First Amendment right of free speech that could have ramifications when it comes to punishing students for expressing dissatisfaction.

The case, known as Agency for International Development v Alliance for Open Society International, involved federal grants that support workers who treat people with AIDS. In order to receive the federal grant, applicants were specifically prohibited from receiving any funds if their organization “does not have a policy explicitly opposing prostitution.”

On the one hand, wrote Justice Antonin Scalia in dissent on the 6-2 majority opinion, receiving is grant from the federal government isn’t a “right” we have but rather a privilege. So, why is denying a privilege considered the government imposing a penalty at all? Even if the government can’t tell organizations what they have to say?

But the majority disagreed, although Chief Justice John G Roberts Jr, who wrote the opinion, said the line wasn’t entirely clear between an outright ban on protected speech and simply meeting the goals the grant program had established (fighting AIDS).

Writing for a six-justice majority (Justice Elena Kagan had recused herself), he said the condition violated the free speech since it required applicants “to pledge allegiance to the government’s policy of eradicating prostitution.” The purpose of the grant was to fight AIDS, and many grantees were afraid that policy would alienate some government leaders and could reduce the “effectiveness of some of their programs by making it more difficult to work with prostitutes.”

So, think about it: Can your school refuse to educate you because you won’t stand for the Pledge? No. That was established in the 1943 decision, West Virginia State Board of Education v Barnette. You can’t be expelled or even punished for not standing during the Pledge. “If there is any fixed star in our constitutional constellation,” Chief Justice Roberts said, quoting Justice Jackson, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

But can they kick you off the football team or deny your position as a captain because you write an article in the school paper that is critical of the coaching staff? Schools might argue that your article made them less able to support their educational mission of educating you, but as we now know, they can’t use an unconstitutional ban on your free speech as a condition for that punishment.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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