Free speech rights are not determined by people's expectations. The expectation test governs privacy rights, not speech rights, which apply whether the speaker or anyone else expects they will apply. Whether the school has the right to curtail conduct is a different question from whether the the Constitution permits its criminalization. Even if the school can lawfully punish "Bongs for Jesus," the most conservative jurist would have to admit that jailing people for such comments would grossly violate the first and fourteenth amendments.

If an actual death threat can be proven, criminal prosecution should ensue. Does it not appear that the correct characterization of the nooses was a racial insult rather than a threat? The black reaction, aggressive and without fearfulness, certainly supports this assessment. The nooses were a reminder of history, and a statement that such treatment is what blacks deserve, It did not constitute a clear and present danger of creating a lynch mob. Displaying a noose is like using the word "nigger" for black, a term that also has a rich association with lynch mobs. Whatever necessity exists to prohibit and punish insults directed towards fellow students in the schools, this necessity should not be confused with the propriety of criminalizing mere insulting language.

Finally, I have no doubt that the readiness of so-called progressives to ban mere speech derives party from compromises Bush and company have imposed on free speech in the name of the "war on terror." Bush has effectively lowered the general bar on repression.