Joel Jacobsen

The Second Circuit's recent decision that only federal judges have the authority to decide what is appropriate clothing for children to wear in public middle schools, and that holding totalitarian hordes at bay requires moving decisively against democratic control of the trivial details of life in a public school (see post 162), should be celebrated for the triumph of Judge Richard Cardamone's clerk in the game of Opinion Bingo.

Judge Cardamone is given credit on the Second Circuit website for having written the opinion, but it's unlikely he even read it.  The giveaway is the sentence on page 23 that begins: "While the exact contours of what is plainly offensive are not so clear to us as the star Arctarus is on a cloudless night..." 

If the author of that sentence expected readers to recognize the name Arctarus, he or she would not have found it necessary to preface it with the explanatory phrase "the star".  Which tells us that the author didn't expect readers to understand the allusion; the explanatory phrase is a kind of apology for what follows.   Which is reason to wonder why the allusion was included.

The use of such an obscure word in such an awkwardly-phrased sentence to make such a banal point is nearly-conclusive evidence that Cardamone's clerk was playing Opinion Bingo, in which, as Dahlia Lithwick has explained,  "points are earned for working a randomly selected word from Webster's into any published opinion."  A judge who reads the opinion before signing it will, of course, delete such nonsense, as Dahlia loyally insists her judge always did.

Given that the 81-year-old Cardamone has been a judge since 1963, it's hardly surprising that he's too tired to care much any more, or so used to being treated like royalty that he sees no need to perform his job.  His clerk might be just a few weeks out of law school, and if so we really must congratulate him or her on earning so much free pizza and beer right out of the box. 

That greenness also explains how an opinion that pretends to be enforcing the first amendment could reach the conclusion that school officials must first examine the message of a t-shirt before deciding whether to enforce a blanket ban on depictions of drugs and alcohol in 7th grade classrooms. 

The case holds that the first amendment's guarantee that the government will not interfere with the freedom of speech requires the government to regulate t-shirts based on their messages.  All t-shirt messages fit into one of the only two possible categories (see post 137): government-approved (that is, federal judge-approved), and everything else.   Items of clothing in the second category are subject to the school dress code, but items in the first category are not.   Like Mom sorting the laundry into light and dark loads.

Can even a half-senile judge's pimply-faced clerk sincerely believe that governmental discrimination based on the message being conveyed by speech is consistent with the first-amendment?  Federal judges are occupationally prone to megalomania, but can even they believe that the first amendment tolerates - indeed, commands - that the government discriminate between messages based on the ideas being conveyed? 

I think the clerk (and/or Cardamone) was trying to say something like: only the type of speech matters.  The t-shirt conveyed a political message, and lawyers and judges tend to be interested in politics, and so therefore those types of messages are particularly important.  T-shirts depicting bands that judges have never heard of, on the other hand, aren't important, and so schools are free to regulate them.

But only a person trained in the crudities of legal reasoning, who accepts without question that reality is properly understood in terms of categories that exist only as linguistic constructions, could believe that (1) a meaningful distinction can be drawn between "message" and "type of message", and (2) that distinction defines the government's authority to regulate its citizen's speech.

But here's some categorizations of my own: the Vermont school district's blanket ban on all clothing depicting drugs or alcohol in school was a reasonable regulation consistent with the first amendment.  The Second Circuit's opinion requiring the school board to discriminate based on content violates the first amendment.  And federal judges (and their clerks) who don't understand that distinction really ought to be put into positions where they can avoid embarrassing themselves again in the future.  Here's a suggestion of such a position.