Absurd and Immature Antics

[Gordon Silverstein]

"Falwell" wasn't just for the hell of it. Immature and an antic, to be sure,
but clearly aimed at undercutting the rising political power and influence
of a very public figure (Falwell), by subjecting him to ridicule. Similarly
with Cohen -- he was at least directly addressing a pressing public policy
issue of the day (the draft). Was it coherent? Was it immature? Maybe -- but
there was a genuine issue there. Same for Tinker. 

(Bethel is a tougher call ... immature and with little overt and clear
political or policy purpose, but there was a coerced audience -- 600
students required to attend and listen to the offensive speech unlike the
silent armband-protest or even the silent jacket in Cohen from which
offended people could avert their eyes). Bethel, one could argue, was
designed to provoke and was designed to undermine and disturb the school.

The odd thing in Bong Hits 4 Jesus is that  even the 'speaker' says there
was no message intended -- but the Chief insisted there was (an anti-
anti-drug message, ie, a pro-drug message at odds with school's anti-drug
teachings). And, unlike Cohen where Black insisted this was a limit on
action, not speech (which could extend somewhat to Bethel) here we are
looking at a case all agree is about whehter school can ban the message, and
not simply the means employed to express the message. 

So, unless the kid was lying, or really had no clue, this seems to me the
first time we really do have a debate about speech "just for the hell of it"
... which seems about right for the age of You Tube ... but then again,
where in the 1st amendment does it limit speech to coherent messages aimed
at current policy debates? 


- Gordon Silverstein





-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of wasserma at fiu.edu
Sent: Thursday, June 28, 2007 9:06 AM
To: conlawprof at lists.ucla.edu
Subject: Absurd and Immature Antics

I know everyone will be thinking/talking entirely about the school race
cases today. But I wanted to pose a question/comment about Morse v.
Frederick:

I was surprised that none of the opinions cited Justice Blackmun's dissent
in Cohen v. California which described the expression there as "an absurd
and immature antic." Frederick's lawyers argued that was all this was--an
effort to be outrageous and get on TV--and Stevens accepted that.

So it raised a question: What are some other examples of cases involving
expression uttered "just for the hell of it," as a way to be outrageous or
to draw attention to oneself, without necessarily trying to get across a
particular message? The examples that jump to mind, beside Morse and Cohen,
include Bethel Sch. Dist v. Fraser and Hustler v. Falwell. What are some
other examples?

And what have courts typically done with those cases and why? What "message"
have courts tried to find in the otherwise for-the-hell-of-it utterances--a
protected or unprotected one? And what role has that "just because" motive
played in the analysis, explicitly or implicitly?

Seems like an interesting linking theme.


Howard Wasserman
FIU College of Law
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