PG impressively misses the entire point of my criticism of Posner's recent free speech decision. The message the students sought to express was childish (unsurprising, since plaintiffs were children).* But the First Amendment protects childish expression, immaturely conceived protests, and silly speech. I spent four years within spitting distance of Pitzer College; I have witnessed many people over age 18 exercise their First Amendment rights in ways as that were just as ridiculous as the Gifties' t-shirt stunt.
It is elitist to assert that the First Amendment does not protect ill-conceived and poorly articulated messages like the students'. It is elitist to assume that speech concerning topics Posner thinks are important is worthy of First Amendment protection while speech about topics that other people--children are people--think are important is unworthy.
While there are valid reasons to be concerned about disruption to the school environment arising out of student protests, ideas are innately disruptive. And absent evidence that particular ideas are the schoolkid equivalent of fighting words (itself a problematic First Amendment concept), there's no good justification for banning a silent protest. Was the students' implicit message of Giftie superiority over Tard rule a good message? Was it a message the school should promote? No. But as KRS pointed out, the First Amendment protects nasty ideas along with nice ones. I used to enjoy snarky, nasty judicial opinions like this. But the judge I clerked for was a true gentleman, and he always said that each case is important to someone, and thus we should keep our snark in check and give a reasoned and fair account in our opinions. This case was important to the kids who filed it (who are probably brats), but it's also going to be important to less obnoxious students who want to express a more sympathetic message but are foiled by autocratic administrators. Contra PG, students do sometimes have strong political views.
And this was itself a form of political speech. This was a protest about an election, for heaven's sake. Some Americans have been protesting elections since 2000. You would think that in this day and age students would be encouraged to question the authorities who administer elections. The ability to exercise constitutional rights intelligently and responsibly is not beamed into your head, Matrix-style, at age eighteen. It must be taught. The wannabe-Übermenschen's demand for electoral transparency is a reasonable request framed within a childish context. It is not the equivalent of shouting "fire" in a crowded cafeteria. It is speech and it should be protected.
* Granted, the suit is seriously problematic on other grounds. I am only concerned with Posner's broad indictment of student speech.