T Nation

9th Cir. Tramples 1st Amendment


I certainly hope this goes up for USSC review... If not, students living in the 9th Circuit will find they have greatly reduced freedoms under the 1st Amendment.


[Eugene Volokh, April 20, 2006 at 7:53pm] 11 Trackbacks / Possibly More Trackbacks

Sorry, Your Viewpoint Is Excluded from First Amendment Protection:

That's what the Ninth Circuit holds today, as to student speech in K-12 schools, in a remarkable -- and in my view deeply unsound -- decision (Harper v. Poway Unified School Dist. http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D2D4CBF690CD61A6882571560001FEBD/$file/0457037.pdf?openelement ).

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 ( http://www.ca9.uscourts.gov/ca9/newopinions.nsf/3BC4CBC4E3F50F418825715600022D4D/$file/0457037d.pdf?openelement ). 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 (see: http://www.law.ucla.edu/volokh/harass ), 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."

So presumably would be T-shirts that depict some of the Mohammed Cartoons, as the dissent quite plausibly suggests -- note that the majority's confederate flag example makes clear that even ambiguous statements are stripped of protection if they can be seen as insulting based on race, religion, or sexual orientation. So perhaps might be T-shirts that condemn illegal aliens, since those too are directed at "minority status such as race, religion, and sexual orientation" (the "such as" makes clear that race, religion, and sexual orientation needn't be the only "minority status[es]" that would get special protection from offensive viewpoints).

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

The Gay-Straight Alliance has a constitutional right to argue that homosexuality is quite proper, that same-sex marriages should be recognized, that discrimination based on sexual orientation should be banned, and that antigay bigotry is an abomination. But when the other side of this debate "about controversial issues" wants to express its views, which will often have to rest on the theory that homosexuality is wrong, sorry, apparently it's not important to preserve student speech that expresses that view.

"[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.

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."

Yet the majority specifically refrains from relying on this principle (and Judge Kozinski's dissent points out that on the facts of this case, there wasn't enough of a showing that the speech would likely cause disruption). Instead, Judge Reinhardt takes some unelaborated remarks by the Supreme Court about the First Amendment's not protecting student speech that "intrudes upon . . . the rights of other students," and fashions from them a constitutionally recognized right to be free from certain kinds of offensive viewpoints (not a right that is itself directly legally enforceable, but a right that the school may choose to assert as a justification for its viewpoint-based speech restrictions).

This is a very bad ruling, I think. It's a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It's an opening to a First Amendment limited by rights to be free from offensive viewpoints. It's a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.

Maybe the government needs more flexibility in controlling student speech than Tinker provides. As the close of Judge Kozinski's opinion, he suggests that, "Perhaps school authorities should have greater latitude to control student speech than allowed them by Justice Fortas?s Vietnam-era opinion in Tinker. Perhaps Justice Black?s concerns, expressed in his Tinker dissent, should have been given more weight. . . . Perhaps the narrow exceptions of Tinker should be broadened and multiplied. Perhaps Tinker should be overruled." But even if this is so, whatever rule is adopted should be a rule that the First Amendment applies -- or doesn't apply -- to all viewpoints equally, not that views that the court system finds "derogatory and injurious" are specially stripped of constitutional protection.


Aren't you one of the people that claims it is okay to bar dissenters from wearing political messages in the presence of the president?

Your own logic would dictate that they aren't restricted from wearing the shirt altogether, there are just certain places (i.e. schools) where they are unallowed which is similar to that concerning political dissenters.

Anyway, yes, I did read it. I couldn't resist the jibe.

I know a lot of people have a problem with the protection of minorities and generally harrassed groups... and this looks like an attempt to protect those groups.


Not on the basis of the political message. I could see barring ALL political messages in certain areas -- in fact, we do it already, at polling places -- but not barring only certain messages in public places.

Private places -- like event fundraisers rented by political parties -- are just that -- private places. So the organizations can make their own rules. Public schools are not private places -- or, do you think they are, in which case I'm sure you wouldn't mind a little religious instruction?

The problem isn't with protecting minorities. The problem is with the government using the power of government to suppress political speech. The problem is with the government picking and choosing sides -- not just advocating one side, but actively suppressing the other. The suppression goes too far, and violates the First Amendment rights of the speaker. To the extent the government wants to enter the fray on ideas, it may advocate, but not suppress.


Could be worse, he could've been drawing pictures of Muhammed or 'brazenly' waving the American flag. This surprises me about as much as (mis)using DNA testing to claim racial benefits.


Apple Says It has Priority Over the First Amendment
Tuan Nguyen - April 21, 2006 11:49 AM

Apple's court case could very well change news reporting as we know it

A year or two ago, Apple Computer became intolerant to the fact that its unreleased product information was being leaked to the public. To Apple, this was a breach of trade secrets, something that many companies do not take lightly. Fortunately, for journalists, the law protects them and their sources from corporate giants. In fact, under the First Amendment, journalists have the right to keep their sources a secret.

Apple decided to take the issue to a higher level and today is in court defending itself. Apple is fighting with the Electronic Frontier Foundation (EFF), an organization dedicated to protecting the rights of journalists. The EFF is defending three websites dedicated to reporting Apple-specific information: AppleInsider.com, MacNN.com and PowerPage.org. According to the court case, Apple is not actually going after the sites themselves, but is going after a ruling that would allow it to obtain information on who leaked information to the websites. Apple believes that its employees are accountable for the leaked information, and it wants rights to put down the hammer.

If Apple wins the case, it could jeopardize the rights of journalists everywhere. Corporations would be able to request the identities of those who leak information and news reporting would be hurt. However, The Mercury News reports that Apple faces a tough fight. It?s being asked difficult questions and so far, the courts have not yet deemed Apple?s claims to be valid. "All you want here is the name of a snitch, so you're saying you have the right to invade the privacy of the e-mail system and to trump the First Amendment ... just to find out who in your organization is giving out inappropriate information?" said Judge Franklin Elia.

Other high tech companies, including Intel have now joined in to give support to Apple. The case itself is shaping up to be a milestone case, for either side of the industry. But the three websites and the EFF are not alone. Other media corporations such as The Associated Press are chiming in support. DailyTech previously reported that Apple had filed for patents regarding a method to interact with computers using physical gestures. While the pictures in the report are public information, some diagrams relating to unannounced technologies that were published by other Apple-focused news sites were not. Interestingly, after examining the diagrams, Judge Conrad Rushing asked Apple "It's just a picture of a product, why is that a trade secret?"


Well, thankfully the decision only deals with SCHOOLS.

If it went any further, I'd dislike it almost as much as I do arresting people en masse in New York because they might be liberals or democrats just prior to the convention.


That's an interesting case. By their very nature, trade secrets lose all value if they become known -- a company only has property rights in a trade secret if it is kept secret. Kind of the opposite of a patent right.

I don't think Apple could do anything to the journalists, but they very well could take action against employees who are leaking. Employees have duty of loyalty issues if they misappropriate the property of an employer - as well, they almost certainly have contractual duties to the employer in the form of a Nondisclosure and Invention Assignment Agreement, which are de rigeur for tech companies.

However, the article is wrong on one specific and important issue: journalists have no right to keep sources secret. They can be sent to jail for contempt of court if they defy a court order to reveal a source, and the First Amendment does nothing to shield them from that. The First Amendment protects their right to not be punished for publishing most information, and protects them from ex ante government censorship of the publication of most information.


Yeah, I dislike that too -- but I also like it when allegations are proved, rather than just assumed true. ANd I also like attributing responsibility to the actual actors...


Re: a First Amendment privilege of journalists to protect sources, some circuits do recognize a judicially created common law privilege of reporters to protect sources -- not sure about the 9th Circuit -- but that's not a First Amendment privilege, and it isn't recognized in all circuits.

Here's an analysis of the controlling USSC precedent:

The Supreme Court holding: Branzburg v. Hayes (1972)( http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=665 ) held that journalists generally do not have a First Amendment right to refuse to reveal their sources, at least unless the investigation is "instituted or conducted other than in good faith," or involves "[o]fficial harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources." This was said in the context of grand jury subpoenas related to criminal cases -- "there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation" -- but the Court's logic seems to apply equally to civil cases and to other proceedings.


Yeah, I know, I hate to believe anything that counters my heros as well...


Pincus was one of 1,821 people arrested in police sweeps before and during the Republican convention, the largest number of arrests associated with any American major-party convention. At the Democratic convention in Chicago in 1968, which unlike New York's was marked by widespread police brutality, cops made fewer than 700 arrests.


The Mass Defense Committee of the NLG-NYC Chapter, which has been providing legal observers and lawyers for activists since 1968, was proud to offer its depth of experience and knowledge to activists organizing events surrounding the Republican National Convention this summer in New York City. We have organized the defense for the majority of more than 1800 people who were arrested. Arrestees have retained lawyers for individual lawsuits and a class action lawsuit has been filed.




That's just a quick Google, don't get all antsy that some of the sources are going to be ones you don't wish to receive news from.

Howevever, yes, it is all the fault of the NYPD, there certainly would have been nobody asking for a "clean" environment during the convention itself.


You sure are getting snippy lately, vroom.


Nah, I'm just misunderstood... I'm sure you can appreciate that! :wink:


Yes vroom, we had a whole thread on this before. Please refer to it for the relevant arguments.

For now, all you've done is link allegations from people who may or may not have been breaking the law (trespassing anyone?). As I recall, they weren't processed very quickly -- not super unusual given the numbers of people being dealt with, but not the best protocol either.

I'm sure the NFL is to blame for asking for "clean" areas around Super Bowls too -- you know, the NFL is to blame when they round up the indigents when big events like that come in to town. 'Cause the police and the city government wouldn't be worried at all about the impression made by their city on all the attendees and on TV...


Yes BB, certainly anyone who walks on a city street, in a public place, is obviously trespassing.

You actually believe what you are saying?

1800+ people (not an alleged number) were trespassing... and then the city (not allegedly) dropped many of the charges.

Wake up and smell the coffee cheerleader.


This is separate argument. Access to public property, time/place/manner restrictions, etc. - all of these are separate issues from the 9th Circuit ruling.

What occurred in the 9th Circuit case was naked judicial preference for one type of speech over another in the name of so-called tolerance and political correctness.

The day you can wear a t-shirt that says "Celebrate Homosexuality" and you can't wear a t-shirt that says "Homosexuality is Shameful" would technically be the day you would being planning your 'revolution' you have been chirping about in recent threads - but I don't quite see the level of rage I would expect from a civil libertarian espousing secession rhetoric because of encroaching tyranny.


Not all Trespassing - many people were also alleged to be blocking public throroughfares, interfering with traffic, blocking access to businesses, etc. I believe they needed to obtain permits or disperse in many cases, and did neither.

Could be that NY had looked at the protests in Seattle for the World Trade talks, and other similar protests, and decided that they weren't going to let protestors shut down their city or run amok? Just perhaps, my close-minded Canadian friend.

I guess you've never seen protesters blocking traffic before, eh? Though perhaps when you're riding dog sleds it's not as big of a problem... =-)


Thank you Thunder. It seems the favorite tactic lately is changing the subject, and unfortunately I keep getting goaded into arguing along...


Well the US killed people in Vietnam so you have no right to discussion this issue.


Yes, it is a completely different argument.

However, perhaps you can wear t-shirts that say "Celebrate Homosexuality" and "Celebrate Heterosexuality", but not "Homosexuality is Shameful" or "Heterosexuality is Shameful"?

The last thing I'm going to do is trust some spin article that Boston excels at finding out there in the blogosphere.


Wait a minute. You were telling me I had to present proof.

Now all of these alleged misdeeds are to be believed?

Perhaps, just perhaps, the fact that the charges are being dropped in so many cases shows that the alleged events did not occur with any degree of regularity?

My god, think outside of the left and right of the matter, the is a huge issue that you completely ignore, while focusing on one which fits the political agenda concerning legislating from the bench.

I'm not trying to change the topic so much as to show your blind followership because it isn't the principle itself that you seem to care about, except who's party benefits from the application of the principle.

I don't feel the government should get into what speech is appropriate in a school, but I do agree that the school should be able to maintain an environment suitable for acquiring an education.

So far, with what little evidence is presented, it looks like the judges went too far. However, I don't really trust your sources to present an unspun story, so I'd need to see more to be sure.

So, in some sense, the ability to apply principles in a consistent way is applicable to the discussion... whether or not you or thunder like that idea.