Thursday, June 24, 2021

School gets an F for free speech violation -- June 24, 2021 column


Naturally, the parents sued.

That was my first reaction months ago to news the Supreme Court would hear the case of a high school cheerleader who sued her school district after she was booted from the cheerleading squad for a vulgar post on Snapchat.

We’re a litigious society, so of course the parents made cheerleading a federal case. Really, folks?

But. Why were school officials in the eastern Pennsylvania town so calcified and controlling they couldn’t find a teachable moment in the social media rant of a 14 year old?

Brandi Levy had blown off steam not at school but on her personal cell phone to her friends on a Saturday afternoon at the Cocoa Hut convenience store.

“F--- school f--- softball f---- cheer f----everything,” she wrote, spelling out the F word. The post included a photo of her and a friend raising their middle fingers.

The junior varsity cheerleader was angry she had not made the varsity squad – although she was offered a JV spot for another year -- and she had not gotten the position she wanted on the softball team.

On Wednesday, the Supreme Court ruled 8-1 in favor of “B.L.,” as the court called the minor. The justices put the nation’s 13,000 school districts on notice they must tread carefully when they regulate student expression off campus.

“It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections . . . But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” Justice Stephen Breyer wrote in the majority opinion. The case is Mahanoy Area School District v. B.L.

Breyer is the oldest justice at 82, and some Democrats hope he will retire so President Joe Biden can name a successor. But the octogenarian gamely waded into the world of the young, describing Snapchat as “a social media application that allows users to post photos and videos that disappear after a set period of time.” He also mentioned there was “upside-down smiley-face emoji” in the post.

In a concurring opinion, Justice Samuel Alito wrote that while most school officials are deeply dedicated, “it is predictable that there will be occasions when some will get carried away, as did the school officials in the case at hand.

“If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory,” Alito wrote.

When cheerleading coaches saw a screenshot of the Snapchat post, they suspended Levy from the squad for the upcoming year.  

Levy apologized, but the officials dug in their heels. Lawyers from the American Civil Liberties Union took the case, arguing Levy’s First Amendment rights were violated, and the courts agreed.

Justice Clarence Thomas, the lone dissenter, wrote that public schools have historically had the authority to regulate student speech.

The Biden administration, many school systems and education groups supported the school district, arguing schools need the ability to censor student speech off campus to fight online bullying, racism and threats.

The court’s majority said schools can limit what students say off campus in certain situations, such as bullying, harassment and threats, and acknowledged that what constitutes off campus can be murky in the age of remote learning. But censorship was wrong in this instance.

“Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school – in a word or two, criticism of the rules of a community of which B.L. forms a part. This criticism did not involve features that would place it outside the First Amendment’s ordinary protection. B.L.’s posts, while crude, did not amount to fighting words,” Breyer wrote, adding:

“B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

The First Amendment protects the right to free expression, although the battles over where to draw the line will continue. In the 21st century, a teenager’s off-campus “snap” may be crude and vulgar, but it is also constitutionally protected speech.

©2021 Marsha Mercer. All rights reserved.

Thursday, June 17, 2021

Cicadas: Hold on, they're going -- June 17, 2021 column

                                  --Smithsonian National Museum of Natural History


The sound of Spring 2021 is the cicada chorus.

The critters have been so thick in the Washington area they have shown up on Doppler weather radar. Even the president had a close encounter.

Joe Biden brushed a cicada away on June 9 as he was about to board Air Force One for his first foreign trip.

The separate charter flight with dozens of journalists covering the presidential trip was delayed seven hours after cicadas swarmed into a jet engine at Dulles Airport in Virginia. Panic averted: Pizza was ordered. For the humans.

Billions of Brood X – pronounced Brood 10 -- cicadas that spent 17 years underground are out in force in the eastern United States, and they’re doing what comes naturally.

Males woo females with their songs, the louder the better. They mate, the female lays eggs and, having fulfilled their destiny, they die. Their offspring burrow underground and sustain themselves for years sipping sap from roots of trees and grasses.

See you in 2038.

While entomologists revel in the periodical cicada show, the invasion makes some people anxious. Having critters fly in one’s face and hair can be a buzz kill and their noise intimidating.

“This mating call and response, which sounds to some like the whining of electrical wires rising and falling, can reach over 90 A-weighted decibels or `dBA.’ That is as loud as a lawnmower, motorcycle or tractor!” the National Institute on Deafness and Other Communication Disorders reports on its Noisy Planet blog.

The Noise Research office of the National Institute for Occupational Safety and Health tweeted this cautionary note on June 11: “The loud calls of cicadas are a great reminder that dangerous noise can affect workers on the job and at home. . . #BroodXtraLoud.”

To measure how loud the cicadas are near you, download the NIOSH Sound Level Meter app from the Apple Store.

We had plenty of notice Brood X cicadas were coming, but imagine the shock and awe the first English colonists must have felt when hordes of cicadas suddenly emerged. The colonists lived in a far quieter world than ours. They had never heard the din of cicadas’ love songs – or lawnmowers, motorcycles or tractors, for that matter.

William Bradford, the governor of the Plymouth colony, wrote in his history about what entomologists believe was a periodical cicada appearance in 1633:

“All the month of May, there was such a quantity of a great sort of flyes like for bigness to wasps or bumblebees, which came out of holes in the ground . . . and ate green things and made such a constant yelling noise as made all the woods ring of them, and ready to deaf the hearers.”

Native Americans believed the insects would bring disease, and Bradford wrote that, indeed, the colonists were sick during the hot summer months.

We now know cicadas don’t bite, cause disease or otherwise harm humans, but they can damage young trees, especially fruit trees. Michael J. Raupp, professor emeritus of Entomology at the University of Maryland who is known as The Bug Guy, calls this damage “the dark side of cicadas.”

Soon after mating, females choose a nice soft greenwood twig or branch. The ideal branch is about the size of a pencil. The female makes cuts in the branch and deposits her eggs. These incisions can cause the branches to flag or droop and die.

But there’s no need to reach for the bug spray.

“Pesticides are generally ineffective in keeping cicadas away,” the Environmental Protection Agency says on its website. “Spraying also doesn’t make sense because cicadas are generally harmless. Applying pesticides to control cicadas may harm other organisms, including animals that eat cicadas.”

Experts suggest waiting to prune the branches until after the cicadas leave, which won’t be long. We expect to be free of this group of cicadas around July 4.

But the cicadas will be back.

Just as we couldn’t have anticipated all that’s happened since 2004, we can’t imagine how life will change by 2038 and the cicadas’ next emergence.

So, stay calm, enjoy – or tolerate – the show. The cicadas will carry on.

 ©2021 Marsha Mercer. All rights reserved.

Thursday, June 10, 2021

Rally 'round the stars, stripes, symbolism -- June 10, 2021 column

                                             -- Flag Day 1917 poster from Library of Congress collection


When President Joe Biden addressed U.S. troops Wednesday in the United Kingdom, a gigantic American flag served as a backdrop. Servicemembers in camouflage behind him waved small American flags.

Presidents frequently use the flag to send messages. Biden’s huge flag on his first foreign trip telegraphed to the world that the United States is back as a player on the international stage.

President Donald Trump’s America First policies are history. And, thankfully, so are his antics as patriot in chief. On numerous occasions, Trump literally hugged the flag while mugging for the cameras. In 2020, he embraced and kissed the flag and mouthed the words, “I love you, baby.”

We ask an awful lot of Old Glory.

We proudly send the flag on our adventures on Earth and in space while at home we fight over how to pledge allegiance.

As originally written in 1892, the Pledge of Allegiance said: “I pledge allegiance to my Flag and to the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all.”

The idea 27 years after the Civil War was to unite the country and to evoke the Declaration of Independence.

In 1923, “my flag” was changed to “the flag of the United States” in case immigrants had any doubt which to which flag were pledging.

During the Cold War, President Dwight Eisenhower prodded Congress to add “under God” after “one nation.” That change in 1954 set off lasting legal battles.

Few are neutral about the flag. Some revere the symbol but may or may not live up to its ideals. Some burn the symbol to protest violations of the flag’s ideals, and a few weaponize it.

It was truly sickening to see American flags used to commit violence Jan. 6 when pro-Trump rioters beat police with flags during the insurrection at the U.S. Capitol.

But, sadly, it wasn’t the first time the flag had been used as a weapon.

On April 5, 1976, during busing desegregation protests in Boston, a photo captured the moment a young, white man aimed the sharp point of a flagpole, the American flag attached, at a black man.

The photograph – “The Soiling of Old Glory” by Stanley Forman -- won a Pulitzer Prize for breaking news photography.

We’ve fought over how to treat the flag for decades. Desecrating the flag was a crime until the Supreme Court ruled in Texas v. Johnson in 1989 that flag-burning was Constitutionally protected free speech, overturning anti-desecration laws.

It was President Richard Nixon who started the trend of wearing American flag pins on lapels. He was countering Vietnam War protesters who sewed flags on their shirts and the seats of their jeans. Other politicians, Republicans mostly, soon adopted the lapel pin.

During the 2016 presidential primary campaign, Barack Obama’s failure to wear a flag pin on his lapel caused a mini dust-up. Asked why wasn’t wearing one, Obama said he’d worn a flag pin after 9/11 but found some people who wear them don’t act patriotic. Instead, he said, he would tell people what he believed and show his patriotism that way.

Nice try. Obama’s reasoned response didn’t fly. After that he wore a flag pin on his lapel.

On Monday, we once again will honor the nation’s most iconic symbol on Flag Day. We celebrate on June 14 to commemorate the Continental Congress’s resolution on June 14, 1777:

Resolved, that the Flag of the thirteen United States shall be thirteen stripes, alternate red and white; that the Union be thirteen stars, white on a blue field, representing a new constellation.

How hopeful our forefathers were to see the young country as united under its flag, a new constellation in the sky. That optimism has been tested as the number of stars has grown to 50, but it continues.

On Flag Day, many Americans will fly flags and wear lapel pins. So bring out the stars and the stripes.

Doing so should be an act for us all, not for one group or another. Our democracy may be messier than ever, but the flag belongs to us all, regardless of party or philosophy.

Now more than ever, we need our shared Old Glory.

©2021 Marsha Mercer. All rights reserved.

Thursday, June 3, 2021

`Month of action' lures with carrots, not sticks -- June 3, 2021 column


Free donuts! Free beer! Free groceries! Free rides! Free childcare! Free college! Free cash!

Free guns! Wait. What?

The escalation of incentives to lure Americans to do something they should do willingly and gratefully rang the absurdity gong in West Virginia.

Gov. Jim Justice Tuesday announced his state would give away to lucky West Virginians who get vaccinated against COVID-19: two full, four-year scholarships to any state university, two new custom-outfitted pickup trucks, 25 weekend getaways to state parks, five lifetime hunting and fishing licenses, a million dollars – and, yes, five customized rifles and five customized shotguns.

Shaking my head.

Justice, a Republican who used to be a Democrat, acknowledged his state shouldn’t have to resort to such giveaways, but he said, “Unfortunately, it’s the way of the world today.”

And there’s a practical side to the vaccination nudge -- or bribe, depending on your point of view.

“The faster we get ‘em across the finish line, the more lives we save” and the more money the state will save on COVID-19 testing and hospital care for COVID patients, he said.

It’s sad the demand for vaccinations nationwide has plummeted so fast. Fewer than 555,000 people a day are getting new vaccinations now, compared with nearly 2 million a day in early April, the Associated Press reported.

In one sense, vaccinations may be the victim of their own success. COVID-19 cases are down more than 90% and deaths down more than 85% since January. Some people may feel they don’t need to get jabbed.

“The fact remains: If you are not vaccinated, you are at risk of getting the virus or spreading it to someone else,” White House press secretary Jen Psaki said.

About 63% of adults have received at least one shot, but President Joe Biden’s goal of having 70% of adults fully vaccinated by July 4 appears in doubt. On Wednesday, he launched a “month of action.”

The campaign will include door-to-door canvassing, texts, media ads featuring celebrities, free rides to vaccination sites by Uber and Lyft, and free childcare for parents while they’re getting shots.

Black barbershops and beauty salons will help clients find vaccinations, which are readily available. Some pharmacies will stay open 24 hours on Fridays in June to give shots.

Krispy Kreme is giving away free donuts to the vaccinated. Some supermarkets are offering free groceries to customers who get vaccinated in their stores.

When the 70% goal is achieved, Anheuser-Busch promises a free round of beer to those 21 and older who are vaccinated and sign up on their website. 

The multi-carrot approach is needed because nothing turns Americans off faster than sticks – such as mandates. And it’s hard to counter the rampant misinformation on social media.

Some people fear side effects, but they typically are mild and far less scary than the unpredictable effects of COVID. For others, not getting vaccinated is a misguided political statement, although the former Republican president and his wife got vaccinated quietly at the White House.

“Getting the vaccine is not a partisan act,” Biden emphasized. The science was done during Democratic and Republican administrations, and the first vaccines were authorized under a Republican president and developed and deployed by a Democratic one.

“I don’t want to see the country that is already too divided become divided in a new way – between places where people live free from fear of COVID and places where, when the fall arrives, death and severe illnesses return. The vaccine is free, it’s safe, and it’s effective,” Biden said.

Reason and patriotism have gotten us only so far; now it’s time for blatant self-interest, largely paid for with federal funds.

Several states, including Ohio, New Mexico and West Virginia, have launched lotteries open only to residents who have gotten vaccinated.

Ten lucky vaccinated New York students Wednesday won full tuition, room and board scholarships to any State or City University of New York campus. The state will raffle a total of 50 free rides, Gov. Andrew Cuomo said, adding each scholarship is about a $100,000 value.

Justice is right that incentives shouldn’t be necessary. But if they get us across the finish line to near normalcy, they’re a price worth paying.

©2021 Marsha Mercer. All rights reserved.