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.