April 21, 2006

The Ninth Circuit at it again

That Ninth Circuit Court of Appeals is at it again, revamping the First Amendment according to their personal notions of "justice." This time, in a 2-1 decision, they granted "minority protection status" to certain forms of speech:

Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, it said "Homosexuality is Shameful." The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.

Harper's speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" -- which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations -- are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."

This isn't limited to, say, threats, or even personalized insults aimed at individual student. Nor is there even a "severe or pervasive" requirement such as that requirement to make speech into "hostile environment harassment" (a theory that poses its own constitutional problems, but at least doesn't restrict individual statements).

Rather, any T-shirt that condemns homosexuality is apparently unprotected. So are "display[s of the] Confederate Flag," and T-shirts that say "All Muslims Are Evil Doers."

Amazingly, the majority wrote "[The Court] reaffirm[s] the importance of preserving student speech about controversial issues generally." To which Eugene Volokh replies: "But, according to the constitution, this First Amendment principle somehow omits speech about controversial issues having to do with race, religion, or sexual orientation."

As I was reading Volokh's post, I immediately thought of the limited speech rights already established for [public] schools by the US Supreme Court. In other words, words or actions that could be deemed "disruptive to the educational environment." Volokh is right on it:

The Supreme Court has indeed recognized that speech in K-12 public schools must be somewhat more restrictable than speech on the street. Tinker v. Des Moines Independent School District (1969) made clear that student speech might be restricted when it's likely to substantially disrupt the educational process. And sometimes speech that's hostile based on race, religion, or sexual orientation -- as well as speech that offends people for a wide variety of other reasons -- might indeed lead to substantial disruption.

But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn't categorically cast out certain student viewpoints from First Amendment protection. While the standard isn't without its problems, it is at least basically consistent with the First Amendment principle of "equality of status in the field of ideas."

"[T]here is an equality of status in the field of ideas," the Supreme Court has said. "Under the First Amendment there is no such thing as a false idea." "The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."

And yet according to Judge Reinhardt, the First Amendment itself discriminates against viewpoints that express hostility to minority races, religions, and sexual orientations.

As usual, Eugene's argument is quite persuasive. Certainly moreso, in my opinion, than that of Judge Reinhardt. In my opinion, if I was the principal of the school in question, I could see myself asking the student to remove the T-shirt, or at least to cover it up, especially if reaction to it among students became disruptive. Of course, the consideration of the school hosting a pro-gay event previously makes this decision more difficult.

But what if a student wears a shirt with a Confederate flag on it? Does he have to take that off based on the "Reinhardt standard" ... but a student with, say, a picture of Louis Farrakhan does not (since the latter may offend members of the majority group)? What if the kid with the Farrakhan shirt is a member of the majority group in that school (but not society as a whole)? How does it work then? (These two paragraphs in part show why I never want to be a school administrator, by the way!)

Yes, I know -- the pro-gay event [probably] didn't involve any negative statements/clothing/banners towards folks of other groups, unlike Tyler's T-shirt. But that's the "easy" argument, and the one -- unfortunately -- that Judge Reinhardt and Thomas took. The First Amendment is most important for the speech that offends ... that is negative ... that is provocative.

I think it's a safe bet this case goes to the SCOTUS ... and gets overturned. Not because the principal asked Tyler to remove the shirt -- but because of Reinhardt and Thomas' poor reasoning.

UPDATE: Greg at Rhymes With Right has more, noting that movies are now "great legal precedents":

The two-judge majority criticized [dissenting judge] Kozinski, suggesting that the majority could rely upon the motion pictures Brokeback Mountain or The Matthew Shepard Story “as evidence of the harmful effects of anti-gay harassment....”

To which Greg replies:

Ultimately it comes down to this -- does speech that does no more than raise a moral objection to homosexuality constitute harassment which can (and, implicitly, should) be banned? After all, this shirt did not say "Homosexuals Are Perverts" or "God Hates Fags" -- and certainly no threat of violence. It said "Homosexuality Is Shameful" -- a moral judgement on the lifestyle. Would the school have been equally opposed to a shirt which claimed that "Racism Is Shameful" or "War Is Shameful" or "Voting Republican Is Shameful"? I think the question answers itself.

UPDATE 2 (22 April at 11:18am): Dale Carpenter adds more insight to the debate. I agree with most of what he has to offer. In particular:

Whether to allow the viewpoint that homosexuality is wrong to be expressed in this particular way (“shameful”) and by this particular method (worn all day on a t-shirt, so that the message is never turned “off”) is a judgment best left to school administrators and teachers. They are in a better position than federal judges to determine, in the context of their own schools, whether such expressions distract from the school’s educational mission, either because they lead to general disruption or because they cause gay kids in particular to hide under a rock rather than learn anything.
Posted by Hube at April 21, 2006 12:03 AM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

or ": Spotted Owl Tastes Like Chicken "

Posted by: Fred at April 21, 2006 10:58 AM

This post is a reaction to Greg's thoughts, which you posted: Racism, War, and Voting a certain way are all actions of free will. Many homosexuals (and straight people, and courts) believe that homosexuality is an in-born, uncontrollable thing that is not the same as the act of gay sex. - gay sex might be a choice, but the innate homosexuality is not. I think this fact makes your argument seem less effective.

Posted by: chris at April 22, 2006 09:14 AM

Chris: I don't think it makes the argument less effective, legally, at least. Notice I state the school admin. could have legitimately utilized the "disruptive educational environment" standard for banning the t-shirt in question. I think they could win in a court battle on this standard alone. But that's not what Reinhardt and Thomas's reasoning rested upon.

Posted by: Hube at April 22, 2006 09:22 AM

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