A day in the year

One Year is a Slate podcast hosted by Josh Levin telling various stories from 1977. (I find it interesting because I turned 9 and it was in many ways the first year I was really aware of the world). This week's episode, Elvis, the Pledge, and Extraterrestrials, tells three stories tied to August 16, 1977. Two touch on interesting speech stuff.

The first is about the National Enquirer's coverage following Elvis Presley's death on August 16. The big focus is its practice of paying sources (such as Elvis' girlfriend and the paramedics who responded to the scene) for exclusive stories and to obtain photos of Elvis' body in the casket. Ian Calder, later of Calder v. Jones fame, features prominently. I remember that around this time People Magazine went on a TV advertising kick with the tagline "If it's in People, you know it's true," an effort to separate itself from the Enquirer.

The second (beginning around 16:30) is about Deborah Lipp, a New Jersey high-schooler who sued the school over the right not to stand for the Pledge (New Jersey law required students to stand at attention, even if not reciting the words). The district court ruled from the bench on August 16 that the law requiring students to stand was invalid. Levin notes that SCOTUS has never ruled on whether the First Amendment protects the right to remain seated, presenting that as an ongoing problem for students through clips of recent school efforts in Texas and Florida (of course) to compel student participation. Lipp tells the story of receiving a call from her daughter's teacher asking for her permission for the daughter to sit, telling the teacher that her daughter does not require parental permission, and the teacher taking that as an expression of permission.

The focus on whether SCOTUS has spkoen leaves out some things. First, less than a year later, the Third Circuit affirmed in Lipp in a short per curiam, agreeing that the state cannot "requir[e] a student to engage in what amounts to implicit expression by standing at respectful attention while the flag salute is being administered and being participated in by other students." So there is binding precedent in New Jersey, Delaware, and Pennsylvania (as well as the Virgin Islands) that schools cannot compel any participation, verbal or non-verbal. Second, SCOTUS precedent does not matter much when most of these cases follow a similar pattern. The school tries to push the student around, a district court tells the school to cut the crap, and the school does not appeal or push further. Alternatively, the school backs off in the face of the threat (often in the form of a letter from the ACLU or FIRE) that a court will tell it to cut the crap. This is not to minimize the costs and burdens on students when school districts become over-officious; I wish they would do a better job at this. It is to say that a SCOTUS decision (which the school also can ignore if it wants to deal with the political, legal, and financial fallout) would not make a difference.