The High Ground

One of the amazing things about American Democracy are the privileges accorded to us under the Bill of Rights. My use of the word ‘privileges’ is quite intentional, for they are exactly that. I teach – emphatically – that those hoary old rights are not cast in stone, are not inviolate. Rather, they are liberties that have been secured for us and routinely nourished – or allowed to wither. In class I refer to the Bill of Rights as a contract that is paid under an installment plan. I fear that this era of entitlement has removed the onus of responsibility that should naturally – and morally – accompany rights.

Let me amplify. I own a boat, and am looking forward to another fine season of sailing on the Long Island Sound – one of the most beautiful stretches of water in North America. My right to operate my boat is dependant on a variety of factors. I have to maintain my safe boating certificate. I have to pay my registration fee on an annual basis. I have legal and moral responsibilities to the crew and guests on the Impulse. Some are legal, some are tradition, all are vital. One could argue that firearm carry permits, driver licenses, and other ‘rights’ are moderated by fiat of government and social expectations.

Freedom of speech is one of the most sacrosanct of these ‘rights’. This despite that several Supreme Court cases have determined that under certain circumstances speech can be curtailed. The Alien and Sedition Acts was the first of a long line of legislative actions that curtailed expression. Often there are good reasons, often there are not. The Hazelwood Case (Hazelwood School District v. Kuhlmeier) placed curbs on the speech of students and has been considered to be a legitimate limit on the freedom of speech. Tinker v. DeMoines produced a different interpretation on freedom of expression.

Now, to the point. Morally speaking, is it acceptable for the chief officers of an organization to advance their political views using the organization’s resources? And would private or public ownership influence this decision? How about a public agency? I would argue that – like the two Supreme Court cases I have cited, different circumstances mandate the application of different remedies.

A private corporation answers to the owner or to the Board of Directors. A public agency in theory answers to the public, but in reality is that a sufficient check on power? One must consider the nature of the expression. A posting on a publicly accessible website would provide the appropriate balance – the public could easily access the endorsement and act according to their convictions. Now an endorsement sent over a closed system – such as interoffice memos or email – can raise different problems. Is it ethical to forward in-system correspondences to parties out of the system?

I would argue that morally it is wrong on several levels. The first is the implication of the administrator speaking as the vox populi. There is strong established precedent in many organizations of a leader speaking on behalf of the people he supervises. The position he or she holds also places others who would dissent in an uncomfortable position. They cannot express their views with the same gravitas as the administrator – the levels of authority and position are too widely separated. Finally, there is always the fear of lower ranking members of an organization protesting. The implied possibility of censure – official or unofficial – are a specter that will deter many from expressing their opposition to the postition of the leader. Far easier – and safer – to simply say nothing, even if that is a morally wrong position.

How does this incident relate to the Supreme Court cases I provided as examples? In Hazelwood, the Court found that prior review is acceptable in a school system. Students in the Hazelwood case found that freedom of expression extended solely to the utility of advancing learning. If there was a pedagogical rationale for permitting or curbing freedom of speech, administrators are free to act. This is an example of curbing freedom of expression to limit disruption and discontent. While schools that would practice prior restraint likely have much to hide, the justification for limiting speech is clear. An extension of this decision can be applied – reasonably – to prevent students, faculty, and administrators from expressing opinions that are disruptive to the environment.

The Tinker decision deals with wearing peace symbols as a means of protesting the Vietnam war. The Supreme Court overturned an earlier ruling and stated that this is and should be a form of protected speech. In this specific instance, the peace symbol was classified by the Court as an acceptable means of expression as it would not significantly interfere with the functioning of the school. Another opinion in the majority cited the 14th amendment, stating that this form of expression is permitted because citizens should be free of the government and subordinate creatures…including Boards of Education.

Two Supreme Court cases. Similar circumstances superficially, different results. Why? Symbolic speech is by its nature a more subtle creature. As a Christian, if I choose to wear my cross openly, I am expressing my convictions. Tinker defends this manner of speech as protected as it is a statement of my personal beliefs – and it is not considered to be disruptive or confrontational. Wearing a swastika will likely invoke a different response as it fails the test of what is considered to be acceptable. Leading a class in prayer is not acceptable in a public school, but is perfectly acceptable outside of school or in a parochial school. Once again, context and setting are relevant on moral and practical levels.

An administrator forwarding a column, letter, or article that endorses a particular viewpoint. Under the tests we have discussed – judicial and moral – the action is wrong. There is no effective oversight to curb such expression. The form of expression is not open to all – if there was an open forum (like this one), then such a statement would be more palatable. The fact that the article is not explicitly endorsing a position is not relevant. The reasonable man test is sufficient to evaluate the point of view of the author. If the author is espousing a particular point of view, then by posting it, I am endorsing it as my own. If I am doing so in an official capacity, than I endorsing it as the Chief Agent of the organization. 

Abuse of power is a slippery creature. It is simple to justify ones actions as ‘freedom of expression’. The problem lies in the balancing of liberty and responsibility. 

Thanks for visiting…..