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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.).

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."

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.

davidbernstein (mail):
I didn't have time to blog this today, but I'm glad to see Eugene did, and said basically what I would have said, except perhaps that I would go further in endorsing that Tinker be limited. This would be a great case to go to the Supremes to (a) limit Tinker while also (b) making it clear that there is no "antidiscrimination" exception to the First Amendment.
4.20.2006 8:58pm
SenatorX (mail):
As an atheist every time I see a cross or "In God we Trust" I am offended. Deeply offended. Do I have a case?

I think I will sue the president the next time I hear him say something about God.
4.20.2006 9:06pm
SLS 1L:
I don't get it. Are schools really not free to prohibit derogatory remarks aimed at other students or groups of students? Do students really have a constitutionally protected right to walk into school with a "Niggers suck" shirt?
4.20.2006 9:07pm
GMUSL 2L (mail):
Gotta love that Reinhardt!

He's been full of "wonderful" "legal" "thought" this week. Hopefully he'll be on the receiving and of yet another 9-0 "benchslap" from this one.
4.20.2006 9:07pm
GMUSL 2L (mail):
Also, cf. Fields v. Palmdale School District (the terrible Reinhardt decision about incredibly explicit sex queries to first graders).

Reinhardt seems to have no problem giving school administrators authority to do just about anything, does he? I guess rights, insofar as they benefit non-liberals, stop at the schoolhouse door for Reinhardt.
4.20.2006 9:10pm
therut:
I henforth declare myself a minority of one --------now give me my rights back. The ninth Circuit is -------------.(add your own word).
4.20.2006 9:17pm
Mike BUSL07 (mail) (www):
One aspect of this opinion I really dislike is its apparent emphasis on minority protection, "our most vulnerable students." This leaves open the possibility that discriminatory speech in the opposite direction will be tolerated, (as it well should be, but clearly so should anti-gay speech).
4.20.2006 9:17pm
te (mail):
Isn't this in line with the level of restrictions that are traditionally considered acceptable in the public school setting?

When I was in junior high school, students were barred from wearing t-shirts that "advertised" alcohol, firearms, etc. Girls were prohibited from wearing anything that "bared their midriff" (we must protect junior high school boys from the distraction of seeing a girl's navel, I guess), and so on.

I don't know what I think about the merits of the opinion, but is it really that far outside the mainstream?
4.20.2006 9:19pm
Duncan Frissell (mail):
SLS 1L

Schools have the right to completely control their charges but only if they're private. When you guys decided to have government schools, you gave up certain rights of control. Hence all the due-process hearings, litigation, etc. that government schools deal with. You gotta take the bitter with the better.

I'll love to see the 9th Circuit courts deal with the christians vs queers problem since both sides are protected by this decision but the protections are in conflict.
4.20.2006 9:20pm
AppSocRes (mail):
The good news is that just about every opinion Reinhardt pens is overturned by a higher court.
4.20.2006 9:25pm
A. Zarkov (mail):
When the civil rights act was being debated in Congress in the 1960s southern senators opposed the bill because they said it would lead to a system of racial preferences. Most liberals regarded these senators as bigots (perhaps rightly so) and emphasized that they all they were seeking was equal treatment under the law. Hubert Humphrey said he eat the bill if anyone could a racial preference. It seems that the southerners were right—the Act did lead to a system of racial preferences. Now we've gone further down the slippery slope to an almost explicit statement that white people are unequal under the law.
4.20.2006 9:38pm
U.Va. 1L (mail):
Wow.

This was, with minor modifications, the problem presented for our journal tryouts this year.
4.20.2006 9:42pm
Richard Aubrey (mail):
Zarkov. Humphrey may well have eaten the bill. He died of stomach cancer.
4.20.2006 9:43pm
Marcus1 (mail) (www):
1. Meh, it's one thing to say homosexuality is wrong, but it's another thing to say it's shameful. Saying it's shameful, I think, is fairly equivalent to saying that members of an ethnic group are depraved. I don't think school children need a right to call eachother depraved, really for any reason. Nor do I think that's what the First Amendment requires.

As long as it's in school, and it's targeting comments which directly insult other people (which I think this comment does), then I don't see the problem.

2. Eugene, it strikes me that you're a free speech absolutist. You seem to have little respect for a school's decision, which is presumably majoritarian, to decide what is appropriate behavior in school. At the same time, you seem to be very pragmatic when it comes to interpreting the establishment clause. A little establishment here and there doesn't seem to really bother you. You seem to have more respect for a school's majoritarian decision to do something religious.

It strikes me, in a way, as inconsistent. I assume that you are an absolutist on the free speech for policy reasons, rather than strict interpretation of the Constitution. You seem to really have slippery slopes at the front of your mind. Is there a reason you don't fear slippery slopes in regard to small infractions on the establishment clause (assuming you agree that this is a small infraction)?

I'm sure there are many distinctions, but my suspicion is that it comes down to a respect for free speech, and not much respect for a freedom from establishment. Just a thought.
4.20.2006 9:46pm
Chris Lawrence (mail) (www):
Maybe the Supreme Court needs a special Reinhardt docket, where every case that he votes in the majority gets automatic expedited review, with the Supreme Court summarily reversing after 30 days unless someone pulls it off the docket.

I'm kidding, I think.
4.20.2006 9:49pm
Mike BUSL07 (mail) (www):
Marcus, what precisely do you mean by "a little establishment here and there" with respect to EV?
4.20.2006 10:00pm
Steve:
I appreciate that Kozinski's dissent was intellectually honest enough to admit that there are some difficult questions in this area.
4.20.2006 10:01pm
A. Zarkov (mail):
Saying it's shameful, I think, is fairly equivalent to saying that members of an ethnic group are depraved.

Homosexuals are not an ethnic group. Moreover it's the acts of homosexuals that some people find shameful, not the mere existence of people with such urges. "Some religious people would say: "hate the sin, but love the sinner." Nevertheless to make homosexuals into a "group" we need to define this group by its behavior, or at least its proclivity towards a certain behavior. Now it's true that homosexuality might be an innate trait, but we don't know for sure it is. I find it curious that homosexual behavior is the one kind of behavior that liberals think is inborn. They are aghast at the suggestion that someone could be born a criminal.
4.20.2006 10:05pm
Grant Gould (mail):
The Tinker standard has never been as viewpoint neutral as it sounds -- it's a convenient fiction to say that it is neutral, and saves the trouble of resolving a difficult problem, but it's naturally and necessarily the case that some viewpoints are more likely to cause a disruption than others. Moreover, it is precisely those views -- extreme, unusual, unspeakable -- most in need of protection that are most likely to cause trouble.

Now it's true that this decision's logic, such as it is, doesn't rely on Tinker. But its reasoning is of a piece with Tinker's: That restricting troublesome speech is viewpoint neutral. The underlying standard is that people with views radical enough to cause some sort of bad effect -- disruption or offense -- must restrict their speech more than people with unremarkable views. Such a standard is the opposite of neutral.
4.20.2006 10:08pm
Katherine (mail):
Reinhardt's opinion seems off to me too, but if you accept the "disruptive to education" test, aren't you inevitably going to be doing a viewpoint test? "Down with [blacks/whites/hispanics/gays/Jews/Muslims]" IS more disruptive than "celebrate tolerance."
4.20.2006 10:13pm
logicnazi (mail) (www):
It seems many of the commentators are missing the big problem with this deciscion. Yes, there is a balancing act required between the rights of students to free speech and the rights of the school to create a functioning learning enviornment. However, whatever means the court chooses to strike this balance ought to be facially viewpoint neutral.

In particular it would obviously be wrong for the courts to hold that shirts critisizing democrats were protected under the first ammendment but shirts critisizing republicans were not. At least in practice it is hard to see how this deciscion isn't similarly biased against certain sorts of viewpoints.

Basically it comes down to the question of what happens when a gay student wants to protest his schools deciscion not to have a gay pride day and wears a T-shirt that says, "Be Ashamed our school has given in to the crazy fundamentalists." Apart from the difference in content such a shirt is exactly analagous to the one worn in this case. Both of them implicitly (but not explicitly) disparage a certain group because of their beliefs/actions (yes proclivity to homosexuality is probably genetic but there are studies that suggest proclivity to religiousity is as well). There simply seems to be no content neutral way to enforce this ruling which doesn't almost entierly strip students of the ability to critisize any group.

I'm a strong supporter of gay rights and I think the religious fundamentalists are bigots hiding behind the shield of faith. However, any speech that is critical of anything disparages some group or suggests that some group is doing something shameful. The fact that people have choosen to view some positions (homosexuality, religion etc..) as central to their personal identity can't be allowed to give them extra power to stop critical speech.
4.20.2006 10:16pm
Katherine (mail):
Always embarassing when you not only cross post, but the previous poster says it better.
4.20.2006 10:18pm
Frank Drackmann (mail):
Hubert Humphrey actually died of bladder cancer.
4.20.2006 10:25pm
Fishbane (mail):
As I said in the other thread, I'm not a Kosinski fan, although I admire his clarity of mind and writing talent, even when I disagree with him. In this case, he's clearly correct.

Of course, on day-to-day matters, when I was in public schools, they routinely engaged in unconstitutional speech suppression (I clearly remember when my 7th grade English teacher lectured me - in front of the class - on the importance of becoming a christian.). I imagine not much has changed.

This strikes me as a sort of creeping problem that is important to smack on the nose every so often, to keep the 1st where it rightly should be.

If that makes me a "free speech absolutist", then so be it - that isn't true, of course; I generally mostly agree with much of the distinctions that have been made over time (and I note that I haven't given this anywhere near the amount of thought that Eugene has); The fundamental remedy to bad speech is, indeed, more speech, and certainly not a local school administrator's judgement as to nuances about antidiscrimination law.

And this is from someone who is often accused of being a "liberal" these days, although I can't pass for one yet.
4.20.2006 10:27pm
Daniel Chapman (mail):
I think "Benchslap" is my new favorite word at the moment. Thanks GMUSL 2L!
4.20.2006 10:56pm
TO:
Kozinski also cites one of his former clerks in his dissenting opinion.

Kozinski-Reinhardt dialogue in these opinions is always high-level discourse. I wonder if Judge Thomas thought the issue merited almost 100 pages of writing...
4.20.2006 10:56pm
TO:
Before everyone goes off the deep end trashing Reinhardt, I'd like to ask if anyone more knowledgable than I am on First Amendment stuff knows if there's much force to Reinhardt's argument that this is an easy case because it's in the context of a preliminary injunction.

PI is a high bar to clear, and I have some sympathy for Reinhardt's suggestion that maybe the student will win on the merits, but for the moment there isn't enough for a preliminary injunction.

Something tells me that I'm missing something, but I'm not sure what it is.
4.20.2006 10:59pm
minority Catholic guy:
Well, it seems to me that if Reinhardt focuses on protecting MINORITY viewpoints, then it's a fair question whether that is measured on a national scale, or in the school itself, or whatever. So if I go to school in Berkeley, and the majority is gay-friendly, and a minority are Catholic or fundamentalist or whatever, then the application of the rule plays out differently. We'd have to protect the Christians from being offended, but not protect those with the dominant majority view. Right? I am sure that Reinhardt would apply his rule consistently . . .

Oh, and in a school with an African-American majority, the protection should favor the white kids, and we should protect their feelings from being hurt by FUBU shirts. But the confederate flag would be OK.

The only alternative would be that Reinhardt is imposing his own content-based filtering of good and bad speech, and we know that couldn't happen, could it?
4.20.2006 11:00pm
Long Time Reader, First Time Comment:
EV: You don't quite give the opinion a fair shake. The quote in bold: "the First Amendment itself discriminates against viewpoints that express hostility to minority races, religions, and sexual orientations" is incomplete. That's true so long as the speech expressing the viewpoint impedes a student's education. It's one thing to say ugly things about stigmatized minority groups; quite another to do it while members of such groups are trying to do their math homework. So the lack of nuance of which you accuse the opinion is equally present - if not more so - in your own post.

By and large, though, I agree the opinion is unsound: by and large this is a viewpoint-motivated restriction on speech. Pro-gay is OK, anti-gay is not....at least in schools. Hanging one's hat on the educational aspect of the case is slicing the onion of expression pretty thin.
4.20.2006 11:06pm
Marcus1 (mail) (www):
Mike,

>Marcus, what precisely do you mean by "a little establishment here and there" with respect to EV?<

Oh, just a general impression I've gotten from reading the blog and occasional articles. I concede he wouldn't probably put it in those terms. At the same time though, I think he would acknowledge that he's not an establishment clause absolutist, as he seems to be a free speech absolutist.

I'd accept if he said he is in fact an establishment clause absolutist, but that he simply doesn't think it means what many secularists think.
4.20.2006 11:07pm
Mike BUSL07 (mail) (www):
Apples and oranges, Marcus. The EC/FE relationship doesnt have a parallel with respect to Free Speech. Also, when I asked for "precisely" I was honestly hoping for something other than "just a general impression." Surely, general or not, your impression is based on something, right?
4.20.2006 11:09pm
Mike BUSL07 (mail) (www):
Also, I don't mean to jinx this, but when was the last time a post even tangentially touching upon homosexuality didn't set off a rampaging Clayton Cramer? Enjoy it while it lasts.
4.20.2006 11:13pm
Hans Gruber (www):
"I don't get it. Are schools really not free to prohibit derogatory remarks aimed at other students or groups of students? Do students really have a constitutionally protected right to walk into school with a "Niggers suck" shirt?"

I actually believe schools should have the sort of authority to censor views which are disruptive or disrespectful, even when they err in their judgment or are conspicuously heavy-handed or one-sided. I believe schools are better at determining what is best for the educational enviroment than judges, but that's not how the Constitution has been interpreted (which is not to say this decision's reasoning is consistent with precedent either).

With respect to your example, it's really not analogous. The student did not wear a shirt that said "Faggots suck." How would you feel if a student wore a "Bush is a terrorist" shirt and was ordered to remove it? How about a shirt insulting the military? These could both be perceived as "denigrating" other students, particular those who are Republican or who have members of their family in the military.

Anyway, the problem is precisely as Logicnazi stated:


Yes, there is a balancing act required between the rights of students to free speech and the rights of the school to create a functioning learning enviornment. However, whatever means the court chooses to strike this balance ought to be facially viewpoint neutral.
4.20.2006 11:17pm
Spooky:
This case only upheld the district court's denial of prelim. injunction - an abuse of discretion standard, not de novo. I'm not a practicing lawyer, but doesn't this mean that the anti-gay student just can't wear that kind of t-shirt until the case is resolved? The Court noted the lack of factual development. The issue doesn't seem to be a slam dunk for the student, so affirming the denial of the prelim. injunction just means the case moves on.

As noted, there were previous scuffles over this very issue at the school - including fights and resulting suspensions. This fact is not present in Tinker. Kozinski found the prior altercations not persuasive, but whether it's an abuse of discretion... that's a close call. (I, too, am disturbed by the language indicating the "antidiscrimination" exception to the first amendment.)
4.20.2006 11:18pm
Marcus1 (mail) (www):
A. Zarkov,

I'd say that whether saying disparaging things about homosexuality is similar to making disparaging comments about an ethnic group could fairly be described as a factual question, which ordinarily, the School should be given deference to decide.

Personally, I wouldn't give them that much deference, but basically here I agree. I think a school is well within its authority to say that such a shirt is inappropriate for school. It pushes, and in my opinion crosses, the boundary from making substantive criticism into making personal attacks against other individuals. I think there is a boundary. I don't think schools should have to tolerate that kind of incitement.

What if a student wore a shirt saying something like "AIDS is deserved"? Do we need to protect that kind of speech in school? I guess Eugene thinks we do; I think he's out of touch.
4.20.2006 11:26pm
Hans Gruber (www):
"What if a student wore a shirt saying something like "AIDS is deserved"? Do we need to protect that kind of speech in school? I guess Eugene thinks we do; I think he's out of touch."

I agree with you. But what if a student wears a "BUSH IS A TERRORIST" shirt? Protected or not?
4.20.2006 11:29pm
Marcus1 (mail) (www):
Mike,

It's like when you're cross exmaning, sometimes you're allowed to ask a question, but then you have to accept whatever the witness says, because you're not supposed to derail the trial :) I could try to establish EV's views, but I prefered just to ask the question. I don't think I could prove any inconsistency in any case.
4.20.2006 11:32pm
Marcus1 (mail) (www):
Hans,

>I agree with you. But what if a student wears a "BUSH IS A TERRORIST" shirt? Protected or not?<

Not, in my mind, without further information. It's school. You don't have a right to be inflammatory in school. Giving kids the right to be inflammatory, I think, is really a terrible idea.

Now, if the shirt said "Bush is the worst president in history," I think a kid has the right to wear it. "Bush Sucks," I say fine, unless there is a rule against saying "sucks." Basically, I think EV's attempt to set a hard-line rule for what's ok in school is misguided. A hardline view doesn't work. You have to ask, are they simply teaching standards of conduct, or are they discriminating against viewpoints? To me, saying "homosexuality is shameful" is inflammatory, inciteful and inappropriate for school. The First Amendment doesn't prohibit that kind of evaluation.
4.20.2006 11:42pm
Perseus:
Shame is a fear for one's reputation or losing face. A shameful act is one that will bring disgrace to oneself in the eyes of others, not that the act is objectively immoral (and should be avoided regardless of the effect on one's public reputation). So calling homosexuality shameful is arguably less bad than calling it immoral (vicious) or sinful. Of course, since the student's T-shirt mentions God, the student presumably intended for people to understand "shameful" as meaning sinful.
4.20.2006 11:43pm
Elais:
Would a 'Save the world and Nail a Christian!' t-shirt be protected or would it be shot down as infringing on freedom of religion?
4.20.2006 11:52pm
Hans Gruber (www):
Marcus,

I'm in the process of reading this and I see some problems. The Court did not rely, like you and I think they should, on the disruptive nature of the shirt. I think if they did, the decision would be much stronger.

"The Tenth Circuit has held that the "display of the Confederate flag might . . . interfere with the rights of other students to be secure and let alone," even though there was no indication that any student was physically accosted with the flag, aside from its general display"

"Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses."

"Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society."

"Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn"

"Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong."

"Different circumstances require different results. We consider here only whether schools may prohibit the wearing of T-shirts on high school campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students and that may cause them significant injury."
4.20.2006 11:57pm
A. Zarkov (mail):
Marcus1:

Lots of things people say are inflammatory. Are we supposed to make school an absolutely benign environment where no one ever says something that might cause offense or inflame a passion? That sounds like a pretty dull school experience to me. Besides life is not like that. Of course if something were so inflammatory that it would cause a fistfight or a major disruption to the workings of the school, that's a different matter. What's happening here is clear. The Ninth Circuit is taking sides in the culture wars. They think it's more important to protect the feelings of homosexuals than Christians, and if they have to engage in results-based jurisprudence, then that's just what they will do.

Suppose a student thinks too much money is spent on AIDS research. After all if we spend money on one disease, we spend less on another in a world of finite resources. A student might feel our medical research dollars are not being used efficiently. Should the school gag him, and shut off debate because the homosexual students might be offended? This is a very slippery slope we have here.
4.21.2006 12:04am
Hans Gruber (www):
This case is an outrage, it really is.

"Accordingly, we limit our holding to instances of derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation."
4.21.2006 12:07am
Hans Gruber (www):
Oh, Marcus, it's interesting that the majority addressed the hypothetical I brought up. Needless to say, a inflammatory rhetoric or disruption of school is the least thing on their minds. They want to particularly protect "vulnerable minorities." Racist or inflammatory speech not directed at "vulnerable minorities" is a different story.

"Similarly, T-shirts that denigrate the President, his administration, or his policies, or otherwise invite political disagreement or debate, including debates over the war in Iraq, would not fall within the "rights of others" Tinker prong."
4.21.2006 12:12am
David M. Nieporent (www):
I'm in the process of reading this and I see some problems. The Court did not rely, like you and I think they should, on the disruptive nature of the shirt. I think if they did, the decision would be much stronger.
But (from reading the opinion and dissent) the reason they didn't is because the school didn't, and the school didn't because it really couldn't, because the evidence of disruptiveness was so slight. (And, also, because that wasn't their motive. Their motive was that they felt that some views aren't worthy of protection.)


What if a student wore a shirt saying something like "AIDS is deserved"? Do we need to protect that kind of speech in school? I guess Eugene thinks we do; I think he's out of touch.
How about if a student wore an armband to signify that the war is wrong? Do we need to protect that kind of speech in school?
4.21.2006 12:27am
chris (mail):
Under current constitutional jurisprudence, is it ok for a school to simply require no writing whatsoever on clothing, backpacks and so forth? That is content neutral.
4.21.2006 12:37am
PaulV (mail):
No one seems tob focus on context of why he wore a t-shirt:

"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"

Once a school stages a forum on a subject how does it obtain authority to silence one side under 1st Amendment?
4.21.2006 12:44am
Wintermute (mail) (www):
Well, we really need an odds board on the right over there --->>

Each participant starts off with say 1000 credits. You win by predicting procedural and final outcomes in ongoing parimutuel wagering. Bettors on each "race" could be identified or unidentified; interesting choice there.

The first race: Will there be a petition to rehear en banc?

Second race: If such petition is granted, what will be the judgment?

And so on. Point standings of all should be available somewhere on the blog, with the top however many on the sidebar.
4.21.2006 12:45am
EL (mail):
Under Reinhardt's interpretation of the First Amendment a student wearing a T-shirt quoting 1 Corinthians 6:9-10 (NIV)
(Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders . . . will inherit the kingdom of God.) would have no First Amendment protection. What a shame.
4.21.2006 12:46am
newc (mail):
So the supreme court has been dragged down to the K-12 level.That is what I see.
4.21.2006 12:55am
Brian G (mail) (www):
"[D]eeply unsound" decision from the Ninth Circuit? Why waste the keystrokes, we all know that especially when Reinhardt is involved. Let's not kid anyone. To Reinhardt and half the Ninth Circus, free speech means you are free to agree with the liberal agenda.
4.21.2006 12:59am
John Jenkins (mail):
TO, the standard is whether the petitioner is likely to win on the merits (irrespective of whether it's a First Amendment claim; the First Amendment claim just means that the public interest counsels in favor of granting the injuction if it's present).

In this case, absent a showing of disruption, the petitioner is likely to win on the merits because that's the Tinker standard for suppressing student speech. Just on that basis, I think Kozinski is right and Reinhardt is wrong. The harm to the speaker outweighs the interest of the school in suppressing the shirt, particularly given the viewpoint discrimination they are apparently engaged in.

I think the TRO should have been granted, or at least the case ought to have been remanded for a better record on disruption (of which the only evidence was the one teacher saying some students were off-task, which would describe 90% of students at any given point in time, I would think, and Judge Kozinski has a great footnote to Ferris Beuller's Day off, among others). Kozinski is clearly right on the law as it is (and I'll leave it to others whether Tinker ought to be revisited). I'm not sure that a facial challenge to the school's policy wouldn't win on the merits either, given the likely vagueness and overbreadth thereof (because it's just impossible to craft one that wouldn't abridge protected speech unless it's confined to obscenity, etc.). So, no, the fact that it's a TRO doesn't make it easier, in fact the standard cuts in favor of the kid here, I think.
4.21.2006 1:20am
DoubleDownRob:
ok, several things:

1. "Benchslap" is a quality word. nice going, GMUSL.

2. I'm with Chris. I want schools to eliminate all writing on clothing. That way, my high fashion line of blank t-shirts will sell like hotcakes, allowing me to make millions! *Insert evil laugh here*

3. In all honesty, i'm not sure 2 isn't a viable solution to this. I say that for the simple fact that censorship doesn't work. You either have to allow it all, or ban it all. Its just wrong to allow a homosexual kid to wear a pro-homosexuality t-shirt to school (which is likely patently offensive to a fundamentalist christian), and not allow a christian kid to wear a an anti-homosexuality t-shirt. And really, i could care less about the actual wording on the shirt. Unless its just completely obscene, I think the shirt must stand, no matter its opinion. And personally, i have a very high tollerance for obsecenity, so yes, i would allow a kid to wear a "niggers suck" t-shirt. However, i don't think i would vigorously defend him from the beatdown he would likely get for wearing it.

The simple fact is this: If you wear a shirt that espouses a controversial message, expect a response. If you wear a pro-homosexual t-shirt in a place where anti-homosexual people are, expect them to protest in some manner. If you wear a "niggers suck" t-shirt, expect a response from black people, and likely expect a the solid ass kicking you would so richly deserve. The courts cannot and should not protect citizens, be they kids or adults, from hearing opinions they don't like. In fact, the courts should promote people hearing opinions they don't like. because thats how you learn.

4. Yeah, i'm happy about no clayton too.

5. where can i get a "Save the world and nail a christian!" t-shirt? (I go to school in the South. its fun to tweak brittle people. and lets face it, fundamentalist christians tend to be pretty brittle. my current favorite T-shirt: a cartoon jesus hangliding, while giving a thumbs up. Caption: "What wouldn't Jesus do?"
4.21.2006 1:57am
Keith (mail):
So the Ninth Circuit has validated the concept of "Freedom of speech for me but not for thee."

I too would be troubled by being a "First Amendment Absolutist" as some have mentioned. Indeed, many here discuss various "what if" scenarios. Yet that make the strongest argument for upholding the student's right to wear the shirt. Once you do what the school has done, you open a Pandora's Box or the proverbial can of worms. The room for abuse then is monumental depending on what agenda you wish to promote. Sadly it seems the Ninth has shown again its agenda. And I am not one to casually throw around the term "liberal agenda".

Question to the posters: What is necessary for Congress to disband a Circuit Court? Is it time to disband the Ninth?
4.21.2006 1:59am
hey (mail):
So by this ruling, the somewhat hip "Boys Suck" t-shirts would be protected (while they are a minority, our society has a past history of oppressing women) while a "Girls are stupid" shirt would be off-side. As would some shirt making fun of someone for being fat. Or having glasses.

That's just wildly illogical. But it's the 9th.

As for commenter asking for parimutuel wagers on items like whether there will be an en banc petition... 100% guarantee that they'll petition for en banc. 99% guarantee that it'll be granted. If the decision gets to the USSC, 100% chance of cert being granted. I mean, seriously, this is a steak and seafood buffet laid out for Scalia. I actually really hope that it does go to USSC just so that Scalia can be mercilessly cruel to the respondents and the 9th circuit for their inability to read Tinker and previous USSC 1st amendment jurisprudence.

Too bad for the plaintiff though.
4.21.2006 2:03am
RaiderNation (mail):
In Monteiro v. Tempe Union High School District Reinhart wrote, "It cannot be disputed that a necessary component of any education is learning to think critically about offensive ideas -- without that ability one can do little to respond to them."

Another quote: "Bad ideas should be countered by good ones, not banned by the court."

Stark departure in Harper today, no?

In this decision he references "Broke Back Mountain" in the foot notes.

Anyone that defends the "reasoning" of this robed tyrant is a straight up fool.

How about this -- my wife is Chinese. Her father and grandfather defected from Communist China, narrowly escaping death. My wife sees the color red and she feels "threatened" because of family history associated with Communist mass murder. Does she have a case? After all, a shirt of a certain hue may move her "off task." Point is -- since when does the Constitution require that one's expression be stifled based on the feelings others may experience?

I guess all one needs to do is throw a fit because the standard seems to be that if you scream and holler about what someone else is wearing, the person screaming red-faced hasn't caused the "disruption," rather the person that quietly wore the shirt. This is sick.
4.21.2006 2:11am
GMUSL 2L (mail):
OK, I really wish I could take credit for it, but "benchslap" is a David Lat/A3G original.

I'd LOVE to claim it, though.
4.21.2006 2:13am
Bryan DB:
The Ninth Circuit didn't reach the issue of Fraser, since they decided the case under another rule, but that certainly wouldn't help Harper's case, no matter what you think of Tinker.

As Fraser notes: "A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school."

In this case, there's a reasonable argument that the text of the shirt was "plainly offensive" and could be regulated by the school under Fraser.

Perhaps Mr. Harper would be better off elevating the level of his discourse.
4.21.2006 2:22am
Jacob Lister (mail):
Might this still be prohibited under the fighting words exception to the First Amendment? Teenagers are easy to provoke to violence, even indirect statements can do it. Tinker held that schools may be more restrictive on student speech, and Cohen v. California also held that standards can vary depending on location. If administrators have some discretion to try to prevent disruption in school, then I could see anti-gay speakers disciplined in certain circumstances (but not a blanket prohibition).
4.21.2006 2:35am
ReaderY:
Is speech critical of judges legal in this country given that it discriminates on the basis of judicial status?
4.21.2006 2:39am
jpaulg (mail):
Of course the wittiest way to respond to this would have been for the pro-gay students to wear T-shirts emblazoned with "Matthew 7:1-2"
4.21.2006 2:54am
eng:
There is something about public school that is fundamentally at odds with liberalism.

Liberalism includes, among other things, the idea that you should think and reason for yourself not merely accept arguments by authority. Granted, parents usually exercise this self-thought on behalf of their child, but public school operates at another level entirely.

Given that children are heavily shaped by their environment, they must be taught many rules of polite conduct. It just doesn't seem possible for this to be done in the context of a public school and maintain basic liberal notions.
4.21.2006 3:18am
randal (mail):
Ignoring the legal subtleties for a moment and focusing on policy... (although Eugene, your post was negligent for not mentioning that this was just a preliminary injunction decision...)

The shirt in question is pretty close to the line. It's not obviously disruptive, but it's not obviously innocuous either. In that sort of case, it makes sense to leave it to the school. Imagine if the kid won the case, printed up 1000 of the shirts, and suddenly it became a school fad? Now it's constitutionally protected, and you have half the school wearing anti-gay shirts. That seems like a problematic outcome.

Normally I'm 100% yay free-speech, and I wouldn't have minded this case going the other way in terms of having my ideology stroked. But probably it's good policy. I'm not sure where the idea that the First Amendment applies strongly in secondary school comes from. Why should it?

The argument seems to be that it's fine to restrict the First Amendment in schools as long as it's viewpoint-neutral. I don't think that gives the best result. If you want to minimize disruption and be totally viewpoint neutral, you have to ban pretty much all viewpoints. That can't be right.

So, from a policy perspective, I think it came out well. It'd be dangerous to give affirmative constitutional protection to any specific student speech - it'll backfire. Ultimately, administrators need a fair amount of flexibility.

One last thing - the alleged distinction between homosexual acts versus proclivities is 100% FUD and herring. When you go and beat up the fag, you don't ask him first whether he's actually done it. You just kick his ass. And if you're gay, you don't take offence to anti-gay remarks only if you've had sex recently.
4.21.2006 3:59am
Hector:
Just throwing out some contrasting hypo's in the vein of the above:

If "Bush sucks" is ok, is "MLK sucks" ok?

Would a "Celebrate Homosexuality" shirt be ok? What about "Celebrate Heterosexuality" or "Celebrate AIDS"?

How about "Celebrate MLK"? Why not "Celebrate Robert E. Lee" then?

Frankly, if any one of these is ok, I have a hard time seeing why all of them aren't. I doubt, however, this school or Judge Reinhardt would agree. And that's the problem with this case.
4.21.2006 4:25am
Public_Defender (mail):
The equivalent shirt from the other side of the debate would not be a shirt supporting gay rights, it would be one that said, "Southern Baptists are shameful" or some other attack on politically conservative Christianity. Of course, that shirt should be constitutionally protected, too.

That said, it's still fair (and constitutionally protected) to argue that the kid is a bigot and a jerk for wearing an offensive (but constitutionally protected) shirt.
4.21.2006 8:43am
Just Sayin:
I agree with Reinhardt. Don't make the public schools the battlegrounds or the other the enemy. Let the protestors "get their own blog" outside at the end of the school day, so to speak. Can you imagine, pragmatically, how schools would run if every lawyers kid knew he had a right to be as offensive to others as he wants to be? ("Public school/Free Speech")

Let the schools and their people have some standards, public or not. They are closest to the situation, and I am certain despite the hyperbole here, that anti-homosexual students (and parents) could find other forums to express their opinions than a public classroom. If there is part of the public ed curriculum parents don't agree with (sex ed or discussing homosexuality) they can either pull their child out or work to gather enough other parents to revise the curriculum.

No activist judges needed to protect Harper; no macroeconomic school-managing from others with outside agendas. Why not let the decisionmaking rest with those closest to the decision? Don't they know their school best? Leave the schoolkids alone and find someone else to shame, or do it on your own time. That shirt does not belong in a school classroom, and I think a "no offensive clothing" policy -- with local standards and school officials and parent boards determining what is offensive and can't be worn in their dress code -- is common.
4.21.2006 8:45am
Just Sayin:
Reinhardt:
"Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong. To say that homosexuality is shameful is to say, necessarily, that gays and lesbians are shameful," Reinhardt.

"There are numerous locations and opportunities available to those who wish to advance such an argument. It is not necessary to do so by directly condemning, to their faces, young students trying to obtain a fair and full education in our public schools," Reinhardt added
4.21.2006 8:46am
Just Sayin:
"Suppose a student thinks too much money is spent on AIDS research. After all if we spend money on one disease, we spend less on another in a world of finite resources. A student might feel our medical research dollars are not being used efficiently. Should the school gag him, and shut off debate because the homosexual students might be offended? "

Depends. What's the topic and subject? Is the student "off topic" and trying to steer discussion into his pet anti-homosexuality topics? Shut off his ability to define the debate then. Let him organize outside of school hours and work to influence there, instead of seizing the lesson plan for his own religious/moral beliefs.

Suppose a student wants to discuss his deep beliefs in creationism during a biology lecture. It's not a matter of "protecting" viewpoints. It doesn't belong there. If the above example about funding medical research is really what's being discussed in a public middle or high school, then of course a student could express such an opinion. I would take about a minute. Others could disagree or agree, nothing shameful about that.
4.21.2006 9:05am
a superfluous man (mail) (www):
This is what happens when we raise up equality to preeminence. And its got a tension with what should be held up there: liberty.

No equality trees, no statues of equality, no equality song, no equality bell.

Where are the great Americans stressing freedom? Like John of Randolph.
4.21.2006 9:15am
R. G. Lacsamana (mail):
By the majority reasoning, it is equally plausible to say that the gay event sponsored by the Gay Alliance is offensive to those who don't believe in such events. This is, indeed, one-sided and a clear-cut abridgment of free speech. This is not the America I know. Perhaps there are civil libertarians out there who can help to appeal this ruling. What about our buddies from ACLU - are you listening?
4.21.2006 9:21am
Peter B. (mail):
As an illiterate, I am offended by T-shirts that say nothing at all. Protected?
4.21.2006 9:33am
Some Guy (mail):
It's about time to show the 9th Circuit the pimphand yet again.

Seriously, how old are these guys? How much longer is this circuit going to be the biggest joke in the judiciary?
4.21.2006 9:57am
A. Zarkov (mail):
If Reinhardt's decisions are frequently overturned, is he guilty of malpractice? If an orthopedic surgeon who did hip replacements had a success rate of 10% instead of the more typical 90% he would run into trouble. His patients would sue him and the medical boards would likely pull his license. Why shouldn't a judge be subject to the same scrutiny and sanction?
4.21.2006 10:08am
ProCynic (www):
Reinhardt is a renegade jurist. He was once quoted as saying he would rule however he pleases, regardless of the actual law, because SCOTUS can't catch them all. The guy should be impeached.
4.21.2006 10:24am
Marcus1 (mail) (www):
A. Zarkov,

>Are we supposed to make school an absolutely benign environment where no one ever says something that might cause offense or inflame a passion?<

See, where I went to school (a public school in Alaska), I had no expectation that I could wear a shirt saying something like "Teachers are jerks," Or "I hate people who listen to rap music," or "Gays are evil." If a teacher would have made me take it off, I had no expectation that I could have gone to the principle and said "But sir, the slippery slope." I have never thought, or been given a reason to believe, that school children should have the right to say any which offensive thing they want.

EV seems to think schools are incapable of distinguishing effectively between rules aimed to enforce standards of conduct and rules aimed to target specific viewpoints. I think he's out of touch. Of course, schools will make stupid decisions and some Republican teacher will tell a kid he can't wear an anti-Bush shirt, or some Democratic teacher will say the kids can't wear an anti-Hillary shirt. But if they are targetting viewpoints, then everybody agrees that it violates the first amendment. Such decisions can be challenged and overturned, and 95% of us will agree.

I don't think the decision in this case targets a viewpoint, unless that viewpoint is "I should be able to say derogatory things about other people." I have no problem with curbing the right to say derogatory things about other people. Moreover, I think the school should be able to decide that homosexuality is innate, and thus that homosexual students are entitled to protection from open hostility. Or simply that anybody is entitled to protection from open hostility.

The goal of school isn't to emulate life after school. It's to teach things which we well recognize many people in real life don't know. I, as an adult, certainly have the right to spout off in pretty much any way I want. I don't think school children should have the right to spout off. What a weird idea!
4.21.2006 10:35am
PersonFromPorlock:

Why shouldn't a judge be subject to the same scrutiny and sanction?

Government employees generally are not accountable for the quality or consequences of their official actions. Nothing can be done about this except to point out, when such a one mentions the responsibilities of his position, that he has no responsibilities at all.
4.21.2006 10:36am
Daniel Chapman (mail):
Justice Marshall said pretty much the same thing... "You do what you think is right and let the law catch up."

The only difference is that Reinhardt has someone looking over his shoulder.
4.21.2006 10:37am
Eh Nonymous (mail) (www):
AppSocRep's comment is funny, if perhaps unintentionally so.

The Supreme Court does not sit to make error corrections. It takes a handful of cases, and although it does reverse a fair number from the 9th Circuit, it does so mainly in cases of a Circuit split, where the issues have percolated sufficiently, etc. etc. Simple incorrectness is not enough.

Of course, that doesn't mean that the Circuit of Texas (tm) can get away with quoting the dissent on remand, *they'll* still get smacked down, GVR'ed, per curiam.

But as another commenter recently said, Reinhardt knows that they can't reverse everything he writes.

If you want error-correction, look to reconsideration or rehearing en banc. And even then, not likely.

No, SCOTUS isn't in the job of fixing merely bad law - its own or anybody else's.

Any suggestions what its job actually is, currently? With some basis in political theory?
4.21.2006 10:45am
Marcus1 (mail) (www):
Hans,


"Accordingly, we limit our holding to instances of derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation."


I don't see the problem. They're not saying other cases won't pass muster, simply that those cases should be decided as they come.

I agree with each of the stated quotes.


"Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses."


Absolutely. I should not be able to wear a shirt in school that says "Christians are depraved," or that "Chinese people are depraved" any more than I should be able to wear a shirt saying "Homosexuals are depraved." As far as I'm concerned, the focus on disruption is misplaced, due to the "hecklers' veto."

The idea that we shouldn't attack people for their race, religion, national origin, sex, sexuality, I think this is a social norm which schools are entitled to enforce. This isn't about whether a shirt is disruptive. The fact that other kids get their panties in a bundle should decidedly not be the test. The test, or at least the applicable test in this instance, should be whether one student is verbally assaulting another. Now, the court says they're narrowing the ruling to only apply when a student is verbally assaulting another on the basis of a core identifying characteristic. Fair enough. Students in school should not be allowed to verbally assault eachother, on their shirts, or otherwise. Does this make for tough decisions in certain circumstances? Sure, but that's pretty much democracy.

Does the First Amendment really ban schools from making that kind of decision? Is that really the requirement of the First Amendment? Does the First Amendment require that courts set hardline rules allowing any kind of insulting speech in schools?
4.21.2006 10:55am
sbw (mail) (www):
Deciding either way the court would be wrong. In the absence of a dresscode forbidding slogans, a child ought to be able to wear the offending T-shirt, and the other teachers, staff, and students should be able to laugh, point fingers, and rant on the thoughtless student that only a thimble-brain would wear such a message.

But somewhere along the line people have to face that neither extreme is appropriate. What is missing from American education -- and apparently the legal system as well -- is that while one may have the freedom to affront others, that does not imply the necessity to do so.
4.21.2006 11:00am
Joe Kristan (www):
Is there much liklihood that the 9th Circuit will rehear the case? And do you lawyers out there is it likely the full circuit would come to a different conclusion on what seems to me an outrageous decision?
4.21.2006 11:01am
MNKurnmudge (mail):
Sorry, Just Sayin- if you want to censor the kid, you can't hold the event celebrating the opposing view. The school clearly can control what expression it chooses to permit, but having permitted views to be expressed, as they did by permitting the gay pride-celebration event, they opened up the forum. Having done that, as logicnazi pointed out, they had to be content-neutral.

No matter how much you may like Reinhardt, he consciously wrote an opinion here that pushed a new PC "hate speech" exception to the 1st Amendment. He was pushing his personal view unnecessarily, just as Kennedy did in Lawrence (when he could have gotten he same immediate result on equal protection grounds, as O'Connor noted). If that's what you want, fine, go to Congress and 50 states and re-write it to match your wishes. Otherwise, knock it off and live with the Constitution as it is.
4.21.2006 11:03am
Marcus1 (mail) (www):
David Nieporent,

>How about if a student wore an armband to signify that the war is wrong? Do we need to protect that kind of speech in school?<

Yes, I don't think that verbally assaults other students. Which raises the important objection: "Yes, but they'll be offended," to which I say, that's their problem. The question should not be whether something is "offensive," which is very vague. The question of whether students are verbally assaulting others, however, I think is appropriate. I.e., "Homosexuality is wrong," I think the kid has a right to wear it, as a general matter. "Homosexuality is shameful," I think not. Tough line? Sure, but someone has to draw the line in school.

What if kids start wearing shirts saying "slavery was great" or "we love the holocaust" or whatever other extremely offensive thing? I don't know, maybe the school will have to impose uniforms. I think the school should at least have some deference, though, for deciding what is allowable in schools. If the school imposed a ban on advocating slavery or genocide, I wouldn't have a problem with that either. As I said, I simply don't think kids have a right to spout off in school.
4.21.2006 11:09am
Mark Pickrell (mail):
To those who think that this decision rests on the procedural nature of a p.i. proceeding: it doesn't. The majority specifically wrote a decision interpreting the First Amendment, not the p.i. standard, so that the plaintiff will lose on remand. The government will put on better evidence of "disruption," the court will rule against plaintiff based on its finding of disruption, and the Ninth Circuit will affirm.

The chances of cert. on this one, either now or after a trial on the merits, is close to zero, IMHO. This case is too much at the edge of our cultural divide (what's better than homosexuals vs. Christians?) for SCOTUS to step in. The ACLU could make a difference, but they won't touch this one with a ten-foot pole. And without the ACLU involved on the side to the plaintiff, Ginsburg, Stevens, Souter, and Breyer will have no political cover (remember, they are not judges, just politicians in robes), Kennedy's too uncertain, and the four conservatives will be afraid to risk it.
4.21.2006 11:16am
Scott W. Somerville (mail) (www):
We had an interesting (unreported) federal court decision in Maryland recently that is right on point. Montgomery County was about to adopt a new sex ed curriculum that cited some religious groups that support homosexuality. The judge ruled that it was unlawful to cite SOME religious groups that favor homosexuals without considering other religious groups that oppose it.

Here's a snip from Citizens for a Responsible Curriculum v. Montgomery County Public Schools:

"The Court is extremely troubled by the willingness of Defendants to venture-or perhaps more correctly bound-into the crossroads of controversy where religion, morality, and homosexuality converge. The Court does not understand why it is necessary, in attempting to achieve the goals of advocating tolerance and providing health-related information, Defendants must offer up their opinion on such controversial topics as whether homosexuality is a sin, whether AIDS is God's judgment on homosexuals, and whether churches that condemn homosexuality are on theologically solid ground. As such, the Court is highly skeptical that the Revised Curriculum is narrowly tailored to serve a compelling government interest, and finds that Plaintiffs' Establishment Clause claim certainly merits future and further investigation."
4.21.2006 11:19am
Seamus (mail):

When I was in junior high school, students were barred from wearing t-shirts that "advertised" alcohol, firearms, etc.



Well, when *I* was in junior high school, students were barred from wearing *any* t-shirts, whether or not they carried political, religious, or commercial messages. I have a hard time understanding why students in school should be allowed to use their clothing as billboards at all. Wouldn't an outright ban be acceptable as a content-neutral regulation?

Now, when I was in high school, Tinker was decided, and it struck me as a reasonable application of the first amendment to the school situation. I am shocked to read in the Harper decision that some courts have actually been citing Tinker to justify bans on the display of the Confederate flag. I can only guess that those courts didn't read Justice Fortas's decision very closely. In it, Fortas cited with approval the Fifth Circuit's decision in Burnside v. Byars, which held that a school could not ban the display of "black power" emblems in the absence of a showing that the display would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." I would think that the Confederate flag should enjoy as much protection as the emblems in Burnside.

Then again, Tinker has been whittled back so far over the past decades that I'm a bit surprised to find the Ninth Circuit acknowledging that it's still good law.
4.21.2006 11:20am
Redman:
Much as I hate to say it, I'm not sure I disagree with the result. Think about it, K-12. I can envision a room full of little 3rd graders, all dressed by their parents in different T shirts all sending some political message via personal, rude ephithet. Most of the kids wouldnt even know what the shirts meant.

Seems to me like an extension of shouting fire in a crowded theatre.
4.21.2006 11:22am
Seamus (mail):
I agree with Reinhardt. Don't make the public schools the battlegrounds or the other the enemy. Let the protestors "get their own blog" outside at the end of the school day, so to speak. Can you imagine, pragmatically, how schools would run if every lawyers kid knew he had a right to be as offensive to others as he wants to be? ("Public school/Free Speech")

That train left the station decades ago. In fact, it was a large part of the basis for Justice Black's dissent in Tinker.
4.21.2006 11:24am
Seamus (mail):
How about this -- my wife is Chinese. Her father and grandfather defected from Communist China, narrowly escaping death. My wife sees the color red and she feels "threatened" because of family history associated with Communist mass murder.

You don't need to present such a far-fetched hypothetical; a Che Guevara t-shirt is one your wife is actually likely to see in a school, and one that would, I expect, rightly make her angry.
4.21.2006 11:30am
Marcus1 (mail) (www):
>By the majority reasoning, it is equally plausible to say that the gay event sponsored by the Gay Alliance is offensive to those who don't believe in such events.<

It's a common distortion, one I've noticed EV is also prone to, to fail to distinguish between something which verbally assaults someone, and something which a person merely finds offensive. Anything can be considered offensive, but nobody is saying that should be the test. What they said is that a test baring verbal assault based on core characteristics is an appropriate test.

So, no, saying you're anti-gay, anti-Christian, anti-black, is not the same as saying you're pro-gay, pro-Christian, pro-black. It's the difference between a compliment and an insult. In school, compliments are ok. Insults are not. Only a bunch of silly lawyers could have any problem telling the difference...
4.21.2006 11:34am
Carolina:
I am always suspicious of decisions which make enormously sweeping constitutional pronouncements yet, within the same opinion, attempt to restrict the result to some desired factual pattern, a distinction which is unsupported by the principles the opinion relies upon.

Although I generally agree with Prof. Volokh's post and Judge Kozinski's excellent dissent, what makes this opinion absolutely indefensible in my opinion is the nonsense about restricting the holding to speech targeted at "minority" groups.
4.21.2006 11:46am
Clayton E. Cramer (mail) (www):
The mistake was Tinker. Children are not adults, and there are a lot of situations where children lack the rights of adults. A public school is certainly one of them. The nearly unlimited freedom of speech that an adult enjoys in the public square, if applied to a student in a school, would preclude a teacher from telling little Johnny to stop talking and work on his assignment; prohibit a teacher from asking Melissa to stop talking why the teacher is talking; and prohibit a school from adopting a dress code that banned T-shirts that said, "Every woman is a ho'."

Tinker reflected the strong antiwar sentiments held by liberals at the time, and rather than admit that public schools and students are not equivalent--or even close--to an adult standing in a public park, the Supreme Court decided to create this situation where the First Amendment somewhat applies--but not entirely. Tinker was wrongly decided; if the students wanted to wear black armbands to protest the war in Vietnam, they could just as easily have done that outside of school.

A public school should not have unlimited discretion as to what constitutes a disruptive message. The remarks of some commenters here justifying why this particular T-shirt should not have been allowed are a reminder that many liberals only believe in free speech when they agree with it. Reinhardt's decision--making a distinction based on minority status and oppression--is one of the reasons that I think so little of the organization that Reinhardt sleeps with--they are constantly prepared to twist the law to suit their political ends, with no concern for consistency.

There needs to be either a consistent policy that says, "Nothing controversial or commercial on T-shirts" (and then, a detailed list of what constitutes these categories), or no restrictions at all. If gay students want to wear T-shirts that make them feel good with pro-gay messages, then T-shirts that express disapproval of homosexuality need to be allowed as well--or homosexuals should just admit that they have so little confidence in the strength of their position that they can't tolerate any debate about it.
4.21.2006 11:51am
Mackey:
I will be blunt... perhaps overly so given this post and Professor Bernstein's from yesterday.... but why is it that we hear nothing of the speech and expressive components involved in simply declaring one's homosexuality and are absorbed instead with such impassioned speech about the evils of censoring anti-gay messages??

Yes, the latter is bad. But censoring the former, which I doubt it can be denied our society effectively does, is just as bad. Why have I never seen (in my admittedly limited experience) any blogs to that effect?

I would never castigate someone for standing up for free speech. But I think I and others are entitled to castigate for the seemingly particular modes of speech that this blog deems fit to defend...and I do. When a site or a person stick up only or at least particularly for the rights of others to express negative views about a community, while basically ignoring the expressive issues attached to that community itself, it certainly lends the impression that augmenting the defense of speech is an assertion of the legitimacy of these views. Not only are they illegitimate (and can be demonstrated so through a marketplace of ideas), but the decision to defend these- _as if they were the most significant speech issue facing our society_- is really utterly appalling.
4.21.2006 12:06pm
Daniel Chapman (mail):
Two words: State Action
4.21.2006 12:09pm
Houston Lawyer:
"derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation"

Apparently I'm missing something. When did "sexual orientation" become a protected class? What the hell is sexual orientation anyway? Does polygamy qualify? Does incest qualify? This is apparently just another way of giving another group preferential treatment denied the majority.
4.21.2006 12:23pm
Mackey:
Daniel,

If those two words were meant for me, they prove woefully insufficient. Is the US military state action (DADT)? How about the FBI (Padula v. Webster) or the Georgia DA (Shahar v. Bowers)? The first particularly, "Don't Ask, Don't Tell," is a clear first amendment issue that I have seen virtually undiscussed in this forum.
4.21.2006 12:24pm
Monkberrymoon (mail):

"Homosexuality is wrong," I think the kid has a right to wear it, as a general matter. "Homosexuality is shameful," I think not.

Thus, we, the heirs of George Mason and Thomas Jefferson do interpret the First Amendment to the Constitution of the United States as parsing the ridiculously non-existent distinction between something being merely "wrong" as opposed to "shameful."

That makes less sense than the majority opinion.
4.21.2006 12:24pm
yetanotherjohn (mail):
I thought about this in regards to my own son's school policy on speech.

There are two relevant sections. First is all posters, brochures, etc have to be approved before displaying or distributing. If a student use school supplies, the teacher has approval rights. If you use non-school supplies or if it comes from a non-student, it has to be approved by the principle first. This seems to be to be content neutral, though if the principle had a history of accepting one speech and not another, I could imagine a case could be made based not on the rule, but on its implementation.

The other bands clothing with messages that advertise alcohol, tobacco or message of a sexual or other inappropriate nature. Also no display of weapons, messages and/or pictures that depict violence. These include messages that could be associated with cults or gangs.

This would seem to me to be based on content. It is not all advertising (which would presumably include NFL, NBA or Nike logos), but only specific kinds. And the "other inappropriate nature" would seem to cover a lot of ground.

On the violence, I could imagine an anti-war shirt refering to the dead in Iraq or a pro-war shirt refering to the dead in the WTC as being banned.

At a minimum, it would seem to me that the schoold district should be forced to explicitly state before hand if it was going to ban a message based on content.
4.21.2006 12:26pm
RBG (mail):
Marcus1's latest post is, I suppose, the logical end of our therapeutic society: compliments and other forms of affirming speech are constitutionally protected, and insults and other forms of harsh criticism are not. It seems to me that this approach to freedom of expression is precisely backwards, but it's not entirely unworkable: today a pro-gay rights rally, tomorrow a pro-Fred Phelps rally. Just as long as you keep it complimentary, man.
4.21.2006 12:26pm
Theway2k (mail) (www):
It is amazing that the courts have upheld the right of American Nazis and white supremacy groups to march in heavily Jewish populated Skokie, IL; yet a Christian in a well mannered display cannot exercise his free speech pertaining to homosexuality. What is that? That is judicial discrimination!
4.21.2006 12:27pm
The Monster (mail):
Perhaps Tyler Harper is a homophobe. But you've got to consider that maybe he was born that way. His lifestyle, including the wearing of shirts that proclaim that homosexuality is shameful, is just as valid as anyone else's. And anyone who says anything bad about him is a homophobeophobe.

Wait. Does that make me a homophobeophobeophobe? My head hurts.
4.21.2006 12:28pm
Philistine (mail):
How is the statement on the shirt any different than a shirt saying something like "Johnny Smith is an idiot"? Or, a shirt saying "Refusing to say the Pledge of Allegiance is shameful," in a school where there a children who do refuse?

To me, the main distinction is the shirt contains what amounts to a personal attack on other students. It's not a question of whether it's "offensive", per se, but rather whether it's directed at others at the school.

Similar to the difference between a "Bush is stupid" T-shirt and a "Bush supporters are stupid" T-shirt.

OTOH, like some of the other commenters, I'm unconfortable with the limitation to minority status--and the Court's somewhat lukewarm explanation in Note 28 as to how a personal attack based on a majority status would be handled.

--Philistine
4.21.2006 12:33pm
Clayton E. Cramer (mail) (www):

Perhaps Mr. Harper would be better off elevating the level of his discourse.
)Perhaps Mr. Cohen would have been better off elevating the level of his discourse on his jacket. Liberals seem to believe in offensive and vulgar speech as constitutionally protected when they agree with the speaker. But when it offends them, well, the speaker should be "elevating the level of his discourse." This sort of hypocrisy is why liberal is a dirty word to most Americans.
4.21.2006 12:35pm
Anderson (mail) (www):
Wow, am *I* late to the party! My $.02:

I think that it's within the public school's discretion to decide that students are not always mature enough to appreciate the hurt they can inflict, and that a viewpoint-neutral test could be devised for any T-shirt message *condemning* others' beliefs. No "Christianity Sucks" or "Gays Are Stupid" shirts. You can declare your own beliefs proudly but don't need to dump on others.

That may not be what Tinker says, but hey, that's how new law gets made. Kozinski may be right, but all the bashing of the other judges because they're pushing on the bounds of a 30-year-old opinion is out of place.
4.21.2006 12:36pm
Mackey:
Monster,

Care to back up the statement that he was or may have been "born" a homophobe? Are you suggesting that homosexuals are natural? If not, how can someone be born, rather than made to hate or fear them?
4.21.2006 12:37pm
The Monster (mail):
Philistine: The difference is that 'Johnny Smith' names a specific person, while the other examples discuss behavior. And if you can't handle someone wearing a T-shirt that says it's shameful not to recite the Pledge, then you need a tougher hide.
4.21.2006 12:39pm
Clayton E. Cramer (mail) (www):

It is amazing that the courts have upheld the right of American Nazis and white supremacy groups to march in heavily Jewish populated Skokie, IL; yet a Christian in a well mannered display cannot exercise his free speech pertaining to homosexuality. What is that? That is judicial discrimination!
And you wonder why people kid that ACLU stands for Anti-Christian Litigation Unit?
4.21.2006 12:39pm
Daniel Chapman (mail):
"But censoring the former, which I doubt it can be denied our society effectively does, is just as bad." - No state action. "Society" is free to discourage speech. (Note... "society" doesn't censor speech.) This is a different argument than you raised in your second post.

DADT is another story. Clearly it DOES restrict speech. Unfortunatly, I think the reason no one's challenging this aspect of the policy is that it will probably lead back to having homosexuals excluded from the military entirely. Also, I'm sure the government would argue that maintaining order in the military is a compelling interest.
4.21.2006 12:41pm
Mackey:
Daniel,

My only point--and I think still a valid one--is that the coverage of infringements on anti-gay speech seems to far exceed coverage of infringements on pro-gay speech. You can say it's a "state action requirement"; I think I've already poo-poo'd that notion. After that, what is it besides an ideological preference much akin to the precise accusation lobbied against "liberals" and their protection of free speech?

Perhaps it's called the Anti-Christian Litigation Unit because a bunch of Christians are simply more impassioned about their speech than others. Perhaps that's why we hear more about pro-homophobia speech than anti-homophobia speech as well.
4.21.2006 12:50pm
Daniel Chapman (mail):
You can "poo-poo" all you like. Your first post complained that "society" restricts the free speech rights of homosexuals. That is not State Action.

Perhaps the reason there is more concern for government restrictions on anti-homosexual speech is because there is more government restriction of anti-homosexual speech. You pointed to DADT and two cases I've never heard of... I can point to HUNDREDS of cases at public schools and universities across the country in the other direction.

Besides... the bloggers here can talk about what they like. We got free speech, remember? Go look around the net... I'm sure you can find people complaining about what you want to hear.
4.21.2006 12:58pm
Philistine (mail):
The Monster:

Personally, I wouldn't feel attacked by a t-shirt about not saying the pledge. On the other hand--I'm not a child in public school who doesn't say the pledge.

Does your advice to "grow a thicker hide" apply to the 8 year-old Jehovah's Witness? Or even, if he were 15 or 16 (like the plaintiff in this case).

I don't see a distinction between general attacks on identifiable students and specific verbal attacks on students.

If Harper had gone up to a gay member of the Gay-Straight Alliance and said what the back of his T-shirt said, should the administration have told him not to say it again? If he did say it again, would they have been in their rights to discipline him?

What is the distinction between a t-shirt saying homosexuality is shameful" and one saying "Johnny Smith's homosexuality is shameful." Would your answer change if Johnny Smith were the only open homosexual in the school? If there were two? Five? Ten?

--Philistine
4.21.2006 12:59pm
Hector:
The distinction between insults and compliments is an empty one. Or would the following be ok: "Celebrate Hitler/Racial Purity/Heterosexuality/the Confederacy/AIDS/James Earl Ray/ etc"? These statements are, after all, complimentary on their faces.
4.21.2006 1:01pm
Neo (mail):
Under the logic of this ruling, if I say something "ill" about the President, won't that be unprotected speech, because there is only one President among 300,000,000 citizens, so he is obviously a minority.
4.21.2006 1:11pm
The Monster (mail):
Philistine: The Jehovah's Witness has been taught by his parents that the world is full of ignorant people who want to drag him down to Hell along with them. He understands that True Believers will always be considered odd by the mainstream.

The statements made by the Gay-Straight Alliance are offensive to Harper. They violate his beliefs as much as the Pledge does the JW. Both of them can handle being in the minority, with a majority that's hostile to their beliefs. Why is it that the gay kid can't handle the T-shirt that disagrees with his?
4.21.2006 1:14pm
Mackey:
Daniel,

Just as I can poo-poo all I like, you can bold nonsense until the cows come home. The idea that there is "more" governmental restriction of anti-homosexual speech is pretty ludicrous. Yes, a school district will occasionally attempt to prohibit a tee-shirt they find inappropriate. But to compare the impact of these local measures with the efforts of the US military, FBI, JAG and other state and federal offices is simply absurd. Do you really think more human beings are affected by this school district's decision than the US military's policy?

This blog does occasionally note speech restrictions on homosexuals, as in the Cumberland incident. But, yes, I think both speech advocates and anti-discrimination advocates tend to be more impassioned about causes they agree with, across the board.

I do believe that the propensity of bloggers on this board to criticize restrictions on anti-gay speech, where other forms of limited speech go unaddressed, speaks to more than a mere commitment to free speech. Even outside the pro-gay/anti-gay binary, aren't there much more significant instances of free speech to be discussed?

Where--oh, where--is the post about the Chinese dissident who verbally attacked Chinese President Hu? No, no...I'm certain a local school board is far far more important.
4.21.2006 1:15pm
Daniel Chapman (mail):
You couldn't miss the point any more if it was intentional. It was a mistake responding to you in the first place, since people who try to exert editorial control over a blog from the comments section are almost always trolls. Have fun, and good luck.
4.21.2006 1:20pm
Philistine (mail):
The Monster:

Jehovah's witnesses tolerate the pledge being said by others. What (IMHO) they should not have to tolerate is other people telling their children in school that they are bad because they don't recite it.

If it makes a difference--substitute something else. "Being Jewish is shameful." "Muslim's are evil." "Niggers suck." In a school and community with a tiny representation of each, the child is unlikely to be dissuaded by "self-help," as some have suggested.

Should they all just grow a thicker skin? Do you see any difference between those examples and the current one, or is it your position that all of the above T-shirts should be allowed in a school?

--Philistine
4.21.2006 1:24pm
Ben Bateman (mail) (www):
Several of the commenters have missed the fact that this student's shirt was a direct response to the school administration endorsing a pro-gay event:
In 2003, the School permitted a student group called the Gay-Straight Alliance to hold a "Day of Silence" at the School which, in the words of an Assistant Principal, is intended to teach tolerance of others, particularly those of a different sexual orientation."

Then a footnote:
In his complaint, Harper alleges that he believes "the true purpose" of the "Day of Silence" was "to endorse, promote and encourage homosexual activity."

So this was NOT just a case of some kid wearing a gratuitously offensive t-shirt. This kid was fighting back. Some students had tried to make their voices heard the previous years, and were slapped down by the school:
a week or so after the [2003] "Day of Silence," a group of heterosexual students informally organized a"Straight-Pride Day," during which they wore T-shirts which displayed derogatory remarks about homosexuals. According to Assistant Principal Lynell Antrim, some students were asked to remove the shirts and did so, while others "had an altercation and were suspended for their actions."

In fact, the t-shirt that the student wore on the second day was pointed specifically at the school's endorsement of the pro-gay event.

So the parallel to this would not just be someone wearing a shirt offensive to Christians. The correct parallel would be where the school holds an event celebrating Christianity and heterosexuality---and then forbidding any of the students from expressing contrary pro-gay opinions.

It's fine with me if the school wants to forbid open debate of inflammatory topics for the sake of letting the kids concentrate on their schoolwork. But that obviously isn't what happened here. If the school opens the door by embracing one side of an inflammatory issue, then it shouldn't be able to silence the other side.
4.21.2006 1:25pm
Mackey:
I have yet to be called a "troll," either on this blog or in person. How civil.

I seek no "editorial control" over this blog... any more, I'd imagine, than the student wearing the tee-shirt seeks "editorial control" over the school or homosexuals.

You asserted that "perhaps" the reason there was more coverage of restrictions on anti-gay speech is because there are more restrictions. I disagree, both in terms of the number of restrictions and more importantly in terms of the number of individuals (and therefore the amount of speech) affected by these restrictions. I, admittedly sharply, disagreed. Your response hardly proves me wrong.
4.21.2006 1:27pm
Dave Hardy (mail) (www):
I guess the holding would be:

School authorities may forbid any expressive conduct that at least two judges, of the three that form any future 9th Circuit panel, deem sufficiently derogatory or offensive to their values.

Conversely, if they forbid expressive conduct that is insufficiently offensive to two of any future panel, they violate the Constitution and will be slapped down, and pay attorneys' fees for their error.

Maybe we can't have many bright line tests in the First Amendment arena (or maybe we should), but this seems to me no test at all. I recall one confict of laws situation where the court declined to apply the contract law of some middle eastern country because it amounted to "the monarch will decide what's fair," and that was, in essence, no "law" in the proper sense.
4.21.2006 1:32pm
Ciarand Denlane (mail):
"The mistake was Tinker. Children are not adults, and there are a lot of situations where children lack the rights of adults. A public school is certainly one of them. The nearly unlimited freedom of speech that an adult enjoys in the public square, if applied to a student in a school, would preclude a teacher from telling little Johnny to stop talking and work on his assignment; prohibit a teacher from asking Melissa to stop talking why the teacher is talking; and prohibit a school from adopting a dress code that banned T-shirts that said, "Every woman is a ho'."

The mistake is public schools. If I were running a private school, I would ban the "ho'" t-shirt and the homosexuality is shameful shirt (and also ban the speech of the Johnny and Melissa examples, but that even Ithink a public school could also ban). And I would allow prayer (agnostic though I may be).

But there is no you're-only-a-teenager exception to the First Amendment. If we're going to have public schools, then the schools do need to follow the First Amendment. The neutrality imposed by both the Free Speech and Establishment clauses probably does bite into what would be good practice from a pedagogical standpoint. After all, schools and education are supposed to shape students. But I am uneasy about a world in which government decides what kind of citizens it will mold rather than citizens deciding what kind of government we will have. So, I'm for separation of school and state.

In the world we have, with public schools, we have a bad choice. Schools should be able to ban the t-shirt. The pubic should not. With institutions that are both schools and public, I think it is a struggle to reach the right result, which is reflected in the thoughtful debates in the two opinions and the comments.
4.21.2006 1:32pm
The Monster (mail):
Philistine:
Again, being Jewish (in the ethnic sense, not the religious one) or black is an accident of birth.

A shirt proclaiming "Muslim's are evil." should be banned by the school administration on grammatical grounds alone. But not because it attacks a beilef system. I'm with Rowan Atkinson on that:

To criticise a person for their race is manifestly irrational and ridiculous but to criticise their religion, that is a right. That is a freedom.

That goes equally for "Piss Christ" and Mohammed cartoons.
4.21.2006 1:38pm
EricK:
If a public school has a dress code, does that infringe on freedom of speech?

Also since when does anyone have the right not to be offended?
4.21.2006 1:39pm
Thorley Winston (mail) (www):
So this was NOT just a case of some kid wearing a gratuitously offensive t-shirt. This kid was fighting back.


A couple of weeks ago, we debated the decision by another California school to prohibit students from bringing flags to school after some racially-charged violence occurred at the school during a debate over immigration policy. Whether one agreed with the decision or not, that school superintendent who implemented the policy at least had the presence of mind to make sure that the temporary ban was applied evenly to all flags even though he thought that it was the display of the Mexican flags which were leading to the problem.

This in contrast is a case in which a school held an event promoting one side of a debate while suppressing the dissenting opinion without showing that the dissent was either expressed in a disruptive manner or by using vulgar language.
4.21.2006 1:48pm
Thorley Winston (mail) (www):
To criticise a person for their race is manifestly irrational and ridiculous but to criticise their religion, that is a right. That is a freedom.


As is criticizing someone's sexual behavior which is ultimately what the T-shirt did.
4.21.2006 1:56pm
Ben Bateman (mail) (www):
In case anyone is naive enough to think that Reinhardt's opinion protects the groups he hates just as much as the groups he likes, consider this section of his footnote 28:
Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. See dis. op. at 21. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority.

I don't know how to read that except as an admission that he wants liberals to get more First Amendment protection than conservatives. Does anyone want to defend that?
4.21.2006 2:09pm
eddie (mail):
Open debate is one thing. However, (a) school is a place where individual are required to be and (b) as caretakers of minors a school has the right to limit certain kinds of speech and behavior.

Can a conference on inclusiveness (or a day dedicated to same) be construed as "speech"? Couldn't the "offended" party make its point of view heard during such a conference? And when did the "offensiveness" of another's speech give license to an escalation into the realm of imflammatory speech?

If the t-shirts had read "God Only Loves Heterosexuals" I do not think that anyone would have cared. But the motto "God Hates Fags" is clearly meant to say more than simply "You are a sinner in god's eyes."

The point is that any speech that is inherently inciting such as let's say "God Hates Fags" should be able to be reasonable controlled in a grade school environment.

As always, bad facts tend to make it possible for bad law. Here we have a clearly imflammatory t-shirt/sweatshirt. To say that this is an in kind response to a conference on inclusion (whether or not the thin-skin of the offended party finds this imflammatory or not) is a little bit much. Should the Fag be able to "express" themselves by belting the person wearing such a t-shirt and justify the same as an in kind response. Yes yes, I know that hitting someone is not really expressive conduct. But neither is wearing a t-shirt that states "God Hates Fags". If a school can ban a child from wearing shorts or bikinis, a school can reasonably ban a child from wearing a patently imflammatory t-shirt (and isn't wearing a t-shirt an act as well as an expression).

The case that would make good law would lies somehwere at the perimeter of such imflammatory nature. Thus, "Death to Bush" is clearly over the line, but "Stop the War" is not.

What about "Impeach Bush". Again this is clearly a political statement. It might imflame those who simply cannot abide any criticism of our war-time president during such difficult times, but it is clearly directed at an action that is expressly sanction by the Constitution.

"God Will Smite All Sinners" is still acceptable.

How about this one "God Doesn't Give a Damn"

This is highly offensive to all believers; one might even say that it is imflammatory; but does it single out any group or individuals for a type of derogation that could reasonably justify additional more violent acts?

To me this particular case is a no brainer and illustrates that those who criticize atheists for bringing suit in the Pledge case as crazy should in the interest of consistency criticize this group of fringe "christians" who put two words together that Christ would never have done, viz. "God Hates".
4.21.2006 2:12pm
Raider (mail):
"You don't need to present such a far-fetched hypothetical; a Che Guevara t-shirt is one your wife is actually likely to see in a school, and one that would, I expect, rightly make her angry."

Actually, that was my original hypothetical -- you are spot on. However, the outrageous language in this decision required a more ridiculous reach of an example about how far we can take this affront to the First Amendment.
4.21.2006 2:19pm
logicnazi (mail) (www):
Whether or not this is a preliminary injunction or not what I find particularly bothersome about this deciscion is the explicit reliance on core identifying characteristics (another way of saying matters people take to define who they are and their place in society). Even if we restricted what counts as a core characteristic to only include immutable charachteristics like race or country of origin this would be a problematic standard (what about genetic predisposition?).

But certainly if we understand core identifying characteristic to include things like homosexuality then what counts as a such is itself a matter of political judgement.

Consider the difference between homosexuality and drug use. Both of these behaviors have an underlying genetic/inherent predisposition (extent is debatable in both cases). In both situations the members of the group feel oppressed by greater society and feel a certain level of comaraderie. Yet we view one of these behaviors as counting as a core identifying feature and the other one not. This is because the judgement as to whether something is a core feature or not is inherently tainted with our judgement about the worthwhileness or value of the behavior. No matter how much mafia members or drug users identify themselves with their subgroup isn't going to get protection as a core characteristic.

As for the point that homosexuality really is an immutable feature like race it is worth pointing out that the christian fundies who dislike homosexuality aren't chritisizing the proclivity just the indulgence of this proclivity. Yes, in the case of homosexuality many people have decided that there is no difference between critisizing homosexuality and critisizing homosexuals (and in some sense I agree) but this itself is a moral/policy judgement. We do make a distinction between critisizing kleptomaniacs and critisizing indulging in kleptomania.

Besides, even bringing up the question of whether something counts as a core identifying feature lets groups change the bounds of what is acceptable speech by being more offended. Just as giving in to the islamic groups over the cartoons would have been wrong as it would have encouraged other religious groups to be more offended to control the public debate so too would a standard that made use of people's attitudes toward a trait they possessed. If one wants to censor criticism of bulimics just start forming bulimic groups and publicly identifying yourself with that characteristic and you make it a core identifying feature.
4.21.2006 2:42pm
logicnazi (mail) (www):
Also many people here seem to be supporting a standard that says that speech can be censored in school if it is sufficently inciting or liable to lead to a fight.

I have a serious problem with this standard as it just gives groups a strong incentive to beat up people whose speech they don't like.

Suppose (hypothetically) it turns out for cultural/historical reasons blacks tend to just ignore people who wear 'nigger's suck' T-shirts and don't get into fights with them but that 'asian's suck' T-shirts provoke asians into beating up the wearer. Then such a standard, despite the greater offensiveness of the former shirt will only make it okay to censor the later.

This just provides an obvious incentive to censor opposing views by reacting violently to them. Your an atheist who dislikes shirts that talk about god, get your friends to start fights with anyone who wears them.

So thinking about it more I have to say I come down as being a hard core free speech absolutist even in schools. Any other standard is going to implicitly favor speech that large majorities find acceptable/right and that sort of majoritarian bias is exactly what the 1st ammendment is supposed to protect against. Just because you are well enough organized and have enough friends that you feel confident beating up people who disagree with you shouldn't give your speech an advantage.
4.21.2006 2:50pm
Ben Bateman (mail) (www):
Can a conference on inclusiveness (or a day dedicated to same) be construed as "speech"? Couldn't the "offended" party make its point of view heard during such a conference? And when did the "offensiveness" of another's speech give license to an escalation into the realm of imflammatory speech?

Eddie, go read the dissent, starting at page 9. What the school had sponsored was not a conference on inclusiveness:
The Day of Silence is a protest sponsored by the Gay, Lesbian and Straight Education Network (GLSEN). According to a GLSEN press release,the Day of Silence is "an annual, national student-led effort in which participants take a vow of silence to peacefully protest the discrimination and harassment faced by lesbian, gay, bisexual and transgender (LGBT) youth in schools." Press Release, GLSEN, A New Record for the Day of Silence (Apr. 14, 2004), available at http://www.glsen.org/cgi-bin/iowa/all/news/record/1655.html.

It's obvious that opposing views were not welcome.
4.21.2006 2:55pm
JosephSlater (mail):
I'm with Marcus1 on all his points, and would pose a hypo based on what I think he's getting at: suppose a public school holds a celebration of Martin Luther King, Jr. Day, portraying MLK's role in the civil rights movement as a positve thing. Does the school therefore have to allow a student wearing a t-shirt saying "niggers are shameful" the next day?
4.21.2006 3:27pm
SLS 1L:
I'd like to express my agreement with the posters who've said that there is a major difference between offensive speech and speech that attacks, harasses, or intentionally insults other students. This speech plainly falls on one side of that line, and it's not the first one.
As for the point that homosexuality really is an immutable feature like race it is worth pointing out that the christian fundies who dislike homosexuality aren't chritisizing the proclivity just the indulgence of this proclivity.
At the risk of furthering Randy's concerns about the coarsening of public discourse, I call bullshit. If I tell someone like that I'm gay, they're not going to wait and inquire into my sexual behavior before deciding I'm worthy of condemnation.
4.21.2006 3:32pm
RBG (mail):
SLS 1L,

One of the first lessons we were taught in our first-year writing course at law school was that adjectives such as "plainly" and "clearly" don't do anything to advance the argument or persuade your reader. If it is so plain that the kid's t-shirt fell on the impermissible side of that line, please do us the honor of explaining and defending that position; the empirical evidence provided by the opinions in these comments would suggest, however, that the matter is actually quite far from plain for fair number of pretty intelligent people.
4.21.2006 3:46pm
ProCynic (www):
Daniel Chapman said "Justice Marshall said pretty much the same thing... 'You do what you think is right and let the law catch up.'

"The only difference is that Reinhardt has someone looking over his shoulder."

IMHO, Thurgood Marshall was just as much a renegade jurist as Judge Reinhardt and had no business being on a court of law of any kind. Same goes for William Brennan. No one has done more to destroy our judicial system than Brennan and Marshall. Reinhardt seems poised to join them.
4.21.2006 3:56pm
TriMT7 (mail) (www):
Commentators here claiming that the "gay pride" event can be construed as equally offensive as the T-shirt declaring a subset of the school population "shameful" are missing a key distinction.

"Gay pride" is not meant to denigrate heterosexuals. It is not to call heterosexuals "shameful" the way the T-shirt is. Had a homosexual kid walked around with a shirt that said, "Breeders are animals and ought to be ashamed".... then I think the school would be right to also ban the shirt.

"Gay pride" shirts and events are meant to help gay students and people feel like they have a place in society, to boost self-esteem and all that good stuff. A straight kid could wear a "straight pride" shirt to his heart's content, but even then he or she would just be acting juvenille and confrontational, because last I checked, heterosexuality isn't exactly under attack, and hetero kids aren't being beat up in hallways in schools across America.
4.21.2006 4:13pm
SLS 1L:
RBG: I have a low opinion of legal "argument," so I'm ignoring my legal writing instructor's advice on this one. Some things simply don't need arguments supporting them; that's why I don't cite to Philosophiae Naturalis Principia Mathematica every time I need to establish that objects tend to fall when dropped.

In this case, referring to "homosexuality" as "shameful" is a direct attack on gay students, barely distinguishable from "being black is shameful."
4.21.2006 4:17pm
Clayton E. Cramer (mail) (www):

If a public school has a dress code, does that infringe on freedom of speech?
By the very loose definition of "speech" that thinks burning a flag is protected speech--sure. But for some reason, the same crowd is prepared to decide that actual printed letters on a T-shirt are not protected free speech. I expect that in a few more years, it would be a criminal offense to quote from some of the Colonial American criminal statutes--but burning flags is free speech.

Also since when does anyone have the right not to be offended?
When the offended parties are homosexual.
4.21.2006 4:23pm
Clayton E. Cramer (mail) (www):
Ah, the essence of liberalism:


"Gay pride" shirts and events are meant to help gay students and people feel like they have a place in society, to boost self-esteem and all that good stuff. A straight kid could wear a "straight pride" shirt to his heart's content, but even then he or she would just be acting juvenille and confrontational, because last I checked, heterosexuality isn't exactly under attack, and hetero kids aren't being beat up in hallways in schools across America.
I see. Some forms of speech are protected, because you agree with them; others are simply "acting juvenile and confrontational," and must be suppressed.

Hetero kids aren't being beat up in hallways for being straight, but they get beat up for wearing glasses, or being smart, or any of a number of reasons that you would not consider as powerful an argument for suppressing free speech.
4.21.2006 4:26pm
Clayton E. Cramer (mail) (www):

In this case, referring to "homosexuality" as "shameful" is a direct attack on gay students, barely distinguishable from "being black is shameful."
The school had an alternative--don't promote homosexuality--a controversial position that was bound to provoke some sort of response, and which had led to conflict previously.

Here's a really wild concept: maybe the school could decide that it had more important things to do, such as teaching the subjects that parents can all agree need to be taught: math; writing; geography; history; art; music. This need to turn every school into an extension of the ACLU is counterproductive.
4.21.2006 4:30pm
SLS 1L:
Clayton: I'd be pretty darn skeptical of a "wearing glasses is shameful" t-shirt too. Still, these things have to be considered in their social context: being gay has been a lot more stigmatized than wearing glasses has.
4.21.2006 4:32pm
JosephSlater (mail):
SLS 1L is right. Again, I ask if a school violates the constitution by celebrating MLK Day but barring t-shirts that say "niggers are shameful." That's the basic analogy here, and looking at it that way, it's relatively easy to allow the first and not allow the second on grounds not related to viewpoint.
4.21.2006 4:38pm
Observer (mail):
This case illustrates the wisdom of schools with mandatory dress codes. In particular, dress codes that prohibit any kind of logos or words on clothing are highly desirable for promoting an educational environment where students are focused on class and schoolwork. Obviously, dress codes like that do not raise any First Amendment issues because they are content neutral. Trying to draw lines between what kinds of messages are verbotten and which are hunky dory is a fool's journey.
4.21.2006 4:41pm
jvarisco:
Even if one were to concede that there is an exception to the first amendment (I'm not suggesting we do so), where does sexual orientation become protected?
4.21.2006 4:44pm
NonFederal NonFarmer (mail):

How about if students chose to wear black armbands to the mandatory sessions celebrating homosexuality? Would that be acceptable as a form of free speech, I wonder? Personally, I doubt it would be so, either in a court of law or on this forum.
4.21.2006 4:46pm
RBG (mail):
SLS 1L:

And I thought it was only fundamentalists who treated moral judgments as unshakeable as the basic undisputed, empirically omnipresent principles of physics! Your audacity is admirable. Here, let me give it a try: homosexual activity is clearly immoral. Case closed, end of discussion. No objections, right?

I know little about you, but I'd venture to guess that you subscribe to the principle of public reason--namely, that political discourse must be set forth with reasons that are accessible to the public at large. If you do hold this position in regards to religiously inspired political action, please explain how your confident and unexplained moral assertions are materially different. Or does that requirement apply only to positions that are not self-evident to you?

Your attitude that no reason need be given for throwing a particular statement on the unprotected side of the free speech line is precisely why I'm, with very minor exceptions, a free-speech absolutist. Why should I entrust any line drawing to a judge or other government official who may very well have a "low opinion of legal 'argument'" and be perfectly comfortable with prohibiting speech if it offends his/her sense of what's morally obvious?
4.21.2006 4:46pm
RBG (mail):
JosephSlater:

Can we please leave the "n" word out of this? It might be an appropriate analogy if the kid's t-shirt had used a similarly derogatory term for gays, but as it did not, your use of the more inflammatory term threatens to obscure the underlying legal question. Shifting your analogy to a shirt that read "Blacks are shameful" makes the point you're trying to make without adding the additional baggage of a very problematic word.
4.21.2006 4:52pm
Ben Bateman (mail) (www):
SLS1L: I suggest that you listen to your legal writing instructor. It's awfully late in the academic year for your thinking to still be so muddy. Other people think differently than you do. If you get through law school without learning that, then you may end up learning it the hard way in front of a judge.

TriMT7: The event was specifically designated as a protest against discrimination against homosexuals. That implies that such discrimination is a major wrong to be righted. And that implication is a slap in the face of those who think that such discrimination is morally right, or even mandated by their religion. Your insult/praise distinction is untenable.
4.21.2006 4:58pm
Anon1ms (mail):
Ben Bateman in reference to the purpose of a Day of Silence: "It's obvious that opposing views were not welcome."

And what would be the opposing point of view? That "lesbian, gay, bisexual and transgender (LGBT) youth in schools" should face "discrimination and harassment"?
4.21.2006 5:05pm
Public_Defender (mail):

It is amazing that the courts have upheld the right of American Nazis and white supremacy groups to march in heavily Jewish populated Skokie, IL; yet a Christian in a well mannered display cannot exercise his free speech pertaining to homosexuality.


Even though constitutionally protected, the t-shirt was obnoxious and certainly not "well mannered." Would you call it "well mannered" to wear a t-shirt that said, "Judaism is shameful," "Southern Baptists are Shameful," or "Coloreds are shameful"?

I would hope not. The kid was intentionally being insulting. That's his constitutional right, but he's certainly not "well mannered."
4.21.2006 5:06pm
RBG (mail):
As Clayton implied earlier, I don't think it's necessary to retreat to the well-mannered defense of the boy's actions. They were, quite obviously, rude and obnoxious, and if I were his father, I would have grounded him right after I had filed suit, even if I agreed with his views.

Further, I don't think it's wise: those on the left began lecturing the American public a half-century ago that rudeness, obnoxiousness, and crassness are no bars to first amendment protection. I think the rest of this have a moral obligation to hold them to that position in cases where the rudeness and obnoxiousness are directed to their sacred cows.
4.21.2006 5:18pm
Clayton E. Cramer (mail) (www):

Clayton: I'd be pretty darn skeptical of a "wearing glasses is shameful" t-shirt too. Still, these things have to be considered in their social context: being gay has been a lot more stigmatized than wearing glasses has.
It depends when and where you grew up. Eventually, wearing glasses stopped being the basis of insults and taunting, but it took a bloody long time. I think I can say with certainty that at the time that this was a problem for me (elementary school in the 1960s), the concept of homosexuality was completely unknown to my peers, and could not have been a reason for stigmatizing someone.


Even though constitutionally protected, the t-shirt was obnoxious and certainly not "well mannered." Would you call it "well mannered" to wear a t-shirt that said, "Judaism is shameful," "Southern Baptists are Shameful," or "Coloreds are shameful"?

I would hope not. The kid was intentionally being insulting. That's his constitutional right, but he's certainly not "well mannered."
If only liberals believed in this concept of "well-mannered" as a requirement for asserting a Constitutional right! No more "Bush = Hitler" posters; no more burning of American flags; no more neo-Nazis marching through neighborhoods with large numbers of Holocaust survivors; no more jackets with "F--- the Draft" on them; no more attempts to justify virtual child pornography, or Howard Stern's crudeness.

But now your ox is being gored, and suddenly there's all sorts of reasons to attack the manners of this kid.
4.21.2006 5:24pm
Clayton E. Cramer (mail) (www):

And what would be the opposing point of view? That "lesbian, gay, bisexual and transgender (LGBT) youth in schools" should face "discrimination and harassment"?
The opposite point of view is that regardless of someone's preferences, it is rude to mistreat them, insult them, or harass them. But that doesn't mean that everyone is obligated to smile stupidly and pretend that everyone approves--which is the purpose of these programs, and liberals like Reinhardt taking the position that vulgarity and rudeness are protected freedom of speech, while a relatively mild statement expressing disapproval of a pet group is not.
4.21.2006 5:28pm
NonFederal NonFarmer (mail):
In the mean time, let's not lose sight of the larger picture that is visible: the 9th Circuit has made it plain that some forms of offensive speech are protected, and other forms of offensive speech are not, and the difference lies solely in the political content of that speech. In a sense, the 9th Circuit has taken the same position with regard to free speech that the Islamic protestors who demand anyone making fun of Mohammed be decapitated take: "free speech for me and my friends only, not for anyone who opposes us".

We can expect more, not less, of this in the years to come.
4.21.2006 5:28pm
Thorley Winston (mail) (www):
Here's a really wild concept: maybe the school could decide that it had more important things to do, such as teaching the subjects that parents can all agree need to be taught: math; writing; geography; history; art; music. This need to turn every school into an extension of the ACLU is counterproductive.


That's probably the best suggestion yet.
4.21.2006 5:30pm
Sarah (mail) (www):
This is why I plan to homeschool. If anyone's going to tell my kid not to wear a t-shirt, it's going to be me, and then "you're not being very considerate and this won't work, you schmuck" will be sufficient grounds for anything. ^_^

Isn't Judge Reinhardt at all concerned that, at some point in the future, his ruling will be used to prohibit students from protesting things he thinks ought to be protested? That's the whole point of tolerance and viewpoint neutrality -- "we're awfully lucky to be in charge now, we'd better shore up our defenses for the time when we won't be in charge anymore." Does that make sense? I think it does. Anyway, this sounds like very dangerous behavior for anyone who recognizes that their side won't always win elections.
4.21.2006 5:34pm
Clayton E. Cramer (mail) (www):

I don't think it's necessary to retreat to the well-mannered defense of the boy's actions. They were, quite obviously, rude and obnoxious, and if I were his father, I would have grounded him right after I had filed suit, even if I agreed with his views.
I'm not sure that they even qualify as rude. Homosexuals and liberals have one view about homosexuality; the general population has a different view about it. There are statements that I would call rude and obnoxious, and if directed an individual, I would be inclined to agree with you--but a general expression of disapproval of homosexuality is no more rude and obnoxious than much of what liberals consider protected free speech.

I'm imagining a parallel universe where conservatives dominate the federal bench. In Post Falls, Idaho, the high school organizes "Respect for Religion" day, when everyone is encouraged to be tolerant and respectful of those who believe in God. Madelyn Murray O'Hair's son comes to school wearing a T-shirt that says, "Religion is for the weakminded." After a federal judge rules that this isn't protected free speech in a school, liberals would be arguing that believers have so little confidence in their beliefs that they need to suppress differing points of view--and I would find such a claim at least plausible.

Part of why homosexuals need to suppress differing points of view--even to the point of forcing a print shop to print same-sex wedding announcements against the owner's conscience--is that they don't have much confidence that they can survive a lively and vigorous debate about their sexuality.
4.21.2006 5:39pm
GMUSL 2L (mail):
SLS 1L, to respond to your earlier hypo, I would say that no "niggers are shameful" would be banned because it uses a slur to Black people, just as "faggots are shameful" would also be banned.

But I have no problem with t-shirts saying "'black power' is racist" or "homosexuality is shameful" or things facially attacking ideas, concepts, or behaviors, rather than PEOPLE.

Also, to answer some earlier posts, not every aspect of a PI is reviewed under abuse of discretion even in the 9th; the legal conclusions it rests on are still reviewed de novo:

"The grant or denial of a motion for a preliminary injunction lies within the discretion of the district court, and its order will be reversed only if the court relied on an erroneous legal premise or otherwise abused its discretion." Chalk v. United States Dist. Ct., 840 F.2d 701, 704 (9th Cir. 1988).

So if the district court got the law wrong, which it seems like he did, he need not have abused his discretion for the PI to be overturned.
4.21.2006 5:40pm
NonFederal NonFarmer (mail):
Isn't Judge Reinhardt at all concerned that, at some point in the future, his ruling will be used to prohibit students from protesting things he thinks ought to be protested?

Probably he expects that the law will simply be further manipulated if required. Remember, the law is merely a tool to be used to create the New Person, it isn't an end in itself.

Anyway, this sounds like very dangerous behavior for anyone who recognizes that their side won't always win elections.

Last time I checked, Circuit Court judges weren't elected...
4.21.2006 5:52pm
anonymous22:
This decision is a further example of the generally solicitous treatment homosexuals have received from the judicial elite of the federal courts. The Reinhardt opinion makes no sense given that the only charge against the T-shirt is that some people find it distasteful (the psychological evidence of harm inflicted on homosexual students is unproven and unimportant-- whether homosexuality is acceptable is a value judgment we are entitled to make).
4.21.2006 6:02pm
jrose:
GMUSL 2L,

How about "Judaism is shameful" versus "Jews are shameful"
4.21.2006 6:03pm
Colin (mail):
So if the district court got the law wrong, which it seems like he did, he need not have abused his discretion for the PI to be overturned.

You've misread the case. The language you quoted indicates that it would, in fact, be an abuse of discretion to rely "on an erroneous legal premise."

On a separate note, it seems that many commenters are vilifying the court (and especially Reinhardt) for his opinion without taking the context into account--this was merely a denial of a preliminary injunction, which presents a much higher bar for the appellants than a de novo review. I don't think that will placate anyone who's truly upset about the opinion, but it's certainly worth taking into account. This case hasn't yet been heard on the merits, much less been decided on appeal.
4.21.2006 6:06pm
Public_Defender (mail):

If only liberals believed in this concept of "well-mannered" as a requirement for asserting a Constitutional right! No more "Bush = Hitler" posters; no more burning of American flags; no more neo-Nazis marching through neighborhoods with large numbers of Holocaust survivors; no more jackets with "F--- the Draft" on them; no more attempts to justify virtual child pornography, or Howard Stern's crudeness.

But now your ox is being gored, and suddenly there's all sorts of reasons to attack the manners of this kid.


I think all of your examples demonstrate rude but constitutionally protected speech. Now, if you could just acknowledge that the kid in this case was being rude to gay students, just as he would have been rude (and just as consitutionally protectected) to have worn a t-shirt saying:


Judaism is shameful;
Christianity is shameful;
Southern Baptists are shameful;
Mormans are shameful;
U.S. Soldiers are shameful;
Etc.
___________

. . . . but a general expression of disapproval of homosexuality is no more rude and obnoxious than much of what liberals consider protected free speech.


There you go again, conflating rudeness and unconstitutionality. Much of what we liberals defend as free speech is extraordinarily rude. So what?
4.21.2006 6:11pm
jrose:
Eugene: 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.
This comment strikes me as hysterical. Firstly, we are only talking about K-12. Such restrictions are impermissible elsewhere. Secondly, the ruling only restricts speech which demeans students because of who they are. If a student wanted to oppose same-sex marriage they could still wear a T-Shirt that read, "protect traditional marriage". It seems to me there are ample ways to express viewpoints - even offensive ones - without demeaning people based on who they are.
4.21.2006 6:12pm
steveh2:

Part of why homosexuals need to suppress differing points of view--even to the point of forcing a print shop to print same-sex wedding announcements against the owner's conscience--is that they don't have much confidence that they can survive a lively and vigorous debate about their sexuality.


I don't think it's "debate" that they fear. It's when lively and vigorous debate turn into lively and vigorous violence that there's a problem.

When I started reading Prof. Volokh's initial post, I was on his side, until I read his examples, and each example provided another instance of speech that I thought should NOT be allowed in a school setting.

It's not about a student being "offended," it's about a student being directly targeted, and I cannot imagine why anyone would suggest that a school should allow students to gang up and target students in a minority by wearing nasty T-shirts.

If a student wore a shirt saying, "[Student X] is a faggot and should go to hell," shouldn't a school have the right to prevent that?
4.21.2006 6:19pm
Monkberrymoon (mail):

If a student wore a shirt saying, "[Student X] is a faggot and should go to hell," shouldn't a school have the right to prevent that?


That's the problem with a lot of these arguments -- several of you are conflating obvious "fighting words" ("nigger" and "faggot" and whatnot) with simple viewpoint expression. Yes, it's an expression that might offend someone, but whether a student might be offended isn't the test for speech suppression in school. And the fact that you all are debating the merits of the sentiment (are gays immoral, etc) illustrates that a lot of you would like to ban this stuff because you disagree with it. That doesn't seem right.

This should be about what's likely to cause a disruption.
4.21.2006 6:31pm
Leland:
I would just like to thank Logicnazi and Hans Gruber for sticking to the facts. Regardless of what the school did or that this was a decision involving the PI, the majority opinion is the concern.

I have no problem with a school banning propaganda of various sorts. I do have a problem with a Circuit Judge stating:


"Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn"

"Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong."

"Different circumstances require different results. We consider here only whether schools may prohibit the wearing of T-shirts on high school campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students and that may cause them significant injury."


My school district had a simple rule, no t-shirts with slogans of any sort. That's a neutral standing in regards to free speech.

If a school wants to have a Gay Pride Day, then what allows it to censor a student who dissents? Would it be acceptable for the school to have a "Support the Troops Day" and ban a student from wearing a Code Pink shirt? If the school just taught the basic literature, history, math, then I think it would be extremely ackward for a student to show up with a slogan t-shirt of any kind. I would hope that our courts could understand the concept.
4.21.2006 6:31pm
Hans Gruber (www):
There seems to be some confusion here. What is so absurd about this decision is not so much the result (though it's my understanding that precedent is with Kozinski), but the reasoning that arrived at the result.

The ability of the speech to disrupt the learning environment is a good rationale but not one employed by this decision. The Court instead held that certain "vulnerable" minorities have a right to be free from offending speech. That's just bizarre. The court explicitly stated that the same sort of speech not directed at "historically oppressed" or "vulnerable" minorities would be treated differently.

I'm not sure if this decision does gays any favors, it treats them as fragile individuals incapable of confronting and withstanding criticism.
4.21.2006 6:37pm
Owen (mail):
The t-shirt in question said "homosexuality is shameful." It did not attack gays as individuals (i.e. "homosexuals are shameful"), but rather merely expressed a viewpoint on homosexuality.

Look, this is a major social issue. Most Americans don't approve of homosexuality in one way or another. It's not an attack on any person or group to express a view on this issue, and anyone who says otherwise is not doing justice to free speech.

A person could have a t-shirt saying "homosexuality is good," and a Southern Baptist could claim that it's an indirect insult to his faith (which must now be a fraud because it holds that homosexuality is bad) and feel that the t-shirt is therefore hostile towards him. How far do we really want to take this?
4.21.2006 6:40pm
JosephSlater (mail):
RBG:

OK, if a school celebrates MLK Day, is it then constitutionally foreclosed from barring a shirt that says "blacks are shameful"?
4.21.2006 6:58pm
Mackey:
Anonymous22,

Apologies in advance, but anyone who speaks of the "generally solicitous treatment homosexuals have received from the judicial elite of the federal courts" strikes me as someone who simply hasn't read the case law. I'm happy to go toe-to-toe on "pro-gay" or "anti-gay" outcomes; I'd be surprised if you could name 3.
4.21.2006 7:02pm
Clayton E. Cramer (mail) (www):

I don't think it's "debate" that they fear. It's when lively and vigorous debate turn into lively and vigorous violence that there's a problem.
That's the fighting words exception in Chaplinsky. I can see how this might be true if you called a particular student a "faggot." (Although I would expect these days in California schools, the response would be, "Thank you! I'm glad that you noticed!") But to use calm language to criticize homosexuality is no more "fighting words" than to burn the American flag--and we all know that this "expressive conduct" is constitutionally protected. Liberals keep defending that decision. Which, by the way, do you think is more likely to lead to fighting?

When I started reading Prof. Volokh's initial post, I was on his side, until I read his examples, and each example provided another instance of speech that I thought should NOT be allowed in a school setting.
If you want to argue that schools have the authority to limit divisive speech, I'm not arguging with you. I just want them to be neutral in how they do that--not making little exceptions to prevent homosexuals from being offended, while members of other groups can be offended at will.

It's not about a student being "offended," it's about a student being directly targeted, and I cannot imagine why anyone would suggest that a school should allow students to gang up and target students in a minority by wearing nasty T-shirts.
Can you give me an example of something in this case where a particular student was targeted?

If a student wore a shirt saying, "[Student X] is a faggot and should go to hell," shouldn't a school have the right to prevent that?
And where, in this case, was a particular student identified and singled out?
4.21.2006 7:08pm
Seamus (mail):
When I made my earlier comment, expressing surpise at how courts cite Tinker to uphold the banning of the Confederate flag, I completely forgot how, two years after Tinker was handed down, the University of Virginia addressed what it saw as a problem with a few students waving the Confederate flag at football games, by banning the display of all flags, except for the U.S. and Virginia flags, and banners for the University itself or visiting sports teams. Someone requested an opinion from the Attorney General of the Commonwealth about the constitutionality of such a ban, and the AG (Andrew P. Miller) held that the ban was indeed unconstitutional, precisely because of the Tinker precedent. (I don't recall that the opinion went into the question of whether the ban could be justified as a content-neutral regulation.)
4.21.2006 7:09pm
Clayton E. Cramer (mail) (www):

I think all of your examples demonstrate rude but constitutionally protected speech. Now, if you could just acknowledge that the kid in this case was being rude to gay students, just as he would have been rude (and just as consitutionally protectected) to have worn a t-shirt saying:


Judaism is shameful;
Christianity is shameful;
Southern Baptists are shameful;
Mormans are shameful;
U.S. Soldiers are shameful;
Etc.
I would disagree with all of those statements, but to call them "rude" has me puzzled. They are right up there with the "woman without a man is like a fish without a bicycle" poster--to call any of the groups you list "shameful" mystifies me.
4.21.2006 7:11pm
steveh2:

That's the problem with a lot of these arguments -- several of you are conflating obvious "fighting words" ("nigger" and "faggot" and whatnot) with simple viewpoint expression. Yes, it's an expression that might offend someone, but whether a student might be offended isn't the test for speech suppression in school. And the fact that you all are debating the merits of the sentiment (are gays immoral, etc) illustrates that a lot of you would like to ban this stuff because you disagree with it. That doesn't seem right.

This should be about what's likely to cause a disruption.


But isn't offensive speech directed at another student likely to cause a disruption in the learning environment? The way I understand it, speech need not cause a physical altercation in order to be "disruptive," at least not when it comes to school.

Should a school system allow a group of students to wear shirts saying "AIDS is shameful" when an AIDS-afflicted student first attends a school? Should a school stand idly by if a large group of students decides to chant "AIDS is shameful" en masse while surrounding said student in the cafeteria?

I also think that it was right for the Ninth Circuit to consider context. "Homosexuality is shameful" must be considered in light of the fact that homosexuals are often subject to physical violence, and even death, simply for being (or appearing to be) homosexual. It simply ignores reality to pretend otherwise.

Thus, I think it should be within the discretion of the people hired and paid for their expertise in running a school to decide that allowing students to broadcast such messages in the classroom would be unduly disruptive.
4.21.2006 7:12pm
Hans Gruber (www):
OK, if a school celebrates MLK Day, is it then constitutionally foreclosed from barring a shirt that says "blacks are shameful"?

I personally think Tinker was wrongly decided and schools should have considerable discretion to decide what is best for the learning environment without a judge second guessing their decisions.

But given that Tinker is the law of the land, the judiciary should not take sides in the culture war and prohibit speech that the cultural elite find distasteful (but not a majority of Americans). The rationale of treating speech differently if directed at "historically oppressed" or "vunerable" students can be applied to support hate speech laws outside of the context of the school. But, of course, the totalitarian left supports that as well. This is a scary decision. Not for its result but for its reasoning.
4.21.2006 7:13pm
Hans Gruber (www):
"But isn't offensive speech directed at another student likely to cause a disruption in the learning environment? The way I understand it, speech need not cause a physical altercation in order to be "disruptive," at least not when it comes to school."

Yes, but this was NOT the rationale of the decision. That's the problem. Similarly offensive or disruptive speech IS protected, according to the majority, so long as that speech is not directed at "vulnerable" or "historically oppressed" minorities.
4.21.2006 7:15pm
Stephen Rider (www):
I see this as a very tangled issue, because there are a lot of legal "threads" coming in from seemingly separate issues that complicate the matter.

One commenter stated that in a private school, the school would completely have the right to regulate its students, but in a public school that right is necessarily restricted by the rights of the students. I agree (and went to a private high school!).

The aspect of this that would have horrified many (if not all) of the founding fathers is the fact that we have ***mandatory government-run schools***. Unless you are wealthy enough to a) pay for private school on top of paying for public school through taxes, or b) stay home and home school your kids (and jump through all the hoops related to that), you MUST send your kids to education centers that are run by the government.

This is one of those socialized situations wherein private matters become, by necessity, everybody else's business. In the "real world" there would be no legal grounds for supressing the kid's free speech, but in a place to which everyone is (effectively) required to go, the government creates for itself an artificial responsibility to protect people beyond the level that is called for on "the outside".

To me this is almost a direct analog to smoking bans. I am almost a libertarian philosophically, but I never really had a problem when government started passing rules saying there was no smoking in government offices. Why?

Let's say I hate cigarette smoke. I go to a restaurant and discover that a lot of patrons smoke and the air is thick with it. I have the option to turn around and walk out. I can eat there, adn simply never go *back*. It's a free market. But with manditory government services, I don't have that option. If I need a driver's license, I must go to the state office for that. If I'm sued and have to go to court, I can't go to somebody's else's competing courthouse down the block.

If I dislike gays, I'm under absolutely no requirement to hang out in any of the bars along that certain stretch of North Halsted in Chicago; and if I'm offended by the Confederate flag, I'm certain that many of you could point out a good number of establishments I would happily avoid.

But when the government *requires* me to spend at least half my waking hours in a place with a large group of essentially random people?

The REAL question to me is "what right does the government have to do THAT?" If it were optional -- if the offended students had the right to walk out the door -- then the tee-shirt would be a non-issue.

You show me a socialized system OF ANY KIND, and I will show you a necessary restriction of rights that is the direct result thereof.
4.21.2006 7:17pm
Clayton E. Cramer (mail) (www):

Anonymous22,

Apologies in advance, but anyone who speaks of the "generally solicitous treatment homosexuals have received from the judicial elite of the federal courts" strikes me as someone who simply hasn't read the case law. I'm happy to go toe-to-toe on "pro-gay" or "anti-gay" outcomes; I'd be surprised if you could name 3.
Romer v. Evans (1996)--in which the electorate of Colorado was determined to have no rational basis for amending their state constitution--and so a majority of the Supreme Court decided to substitute their judgment for that of the voters.

Lawrence v. Texas (2003)--in which the U.S. Supreme Court decided that the state legislature of Texas could not pass a law prohibiting sodomy because criminalizing homosexual conduct was a violation of the Fourteenth Amendment's due process clause--a position that no one else seems to have notice for more than a century after the Fourteenth Amendment was ratified. To achieve their goals (and let me emphasize that I think such laws are stupid), the Supreme Court rewrote history, claiming that laws prohibiting specifically homosexual sex are modern innovations. As I demonstrate here, this is clearly false history.
4.21.2006 7:21pm
Stephen Rider (www):
In that last sentence, "necessary" should be in quotes. Oh, and it's spelled "mandatory". My bad.
4.21.2006 7:22pm
NonFederal NonFarmer (mail):

A person could have a t-shirt saying "homosexuality is good," and a Southern Baptist could claim that it's an indirect insult to his faith (which must now be a fraud because it holds that homosexuality is bad) and feel that the t-shirt is therefore hostile towards him. How far do we really want to take this?


But of course to claim that the t-shirt is an insult to his faith would not be actionable in the modern court system; indeed, anything that is an insult to anything resembling Christianity is by definition protected speech in our modern world. Hostility towards Christians is a good thing, so far as the ACLU and other modern, progressive thinkers are concerned. Good, but not mandatory, not yet anyway.

How far do we really want to take this? Let me answer that question with another question: what are we doing in this handbasket, and where are we going?
4.21.2006 7:22pm
Ben Bateman (mail) (www):
Anon1ms:
And what would be the opposing point of view? That "lesbian, gay, bisexual and transgender (LGBT) youth in schools" should face "discrimination and harassment"?

The opposing view would be called freedom of association. That's where people are free to associate or refuse to associate with whomever they want, rather than being treated like moral imbeciles and ordered around by their political masters.

Currently I'm free to refuse to associate with all sorts of people whose pleasures I find repulsive. I refuse to associate with smokers or heavy drinkers. I can stay away from people who frequent strip clubs or who pick their noses in public. I can choose to avoid people because I don't like their hair color, or because I don't like the way that they laugh.

But somehow I'm not allowed to avoid people who want me to know how and with whom they like to have sex. Actually, that's not quite accurate. I think that it's still legal for me to avoid necrophiles, bestialists, coprophiles, and porn addicts. Polygamists and transvestites are borderline, at least for the moment. And I may even have a legal duty to report my friends and acquaintances to the police if I find that they have acted on sexual desires involving children.

So there are still lots of sexual practices that I can discriminate against. Many are still crimes. But then there are the acts that two men do with each other or two women do with each other. The political zeitgeist says that I have no freedom to avoid the people who regularly engage in those acts, and I hear that in Canada it's even a crime to criticize them.

What's the difference between the protected acts and the criminal acts? Honestly, once you leave behind procreation or any sort of man-woman bonding in support of procreation, I don't see any major distinctions between sexual practices, other than health risks, subjective 'ick' factor, and political power. The gays have been organized and working hard for decades to have their preferred method of orgasm decriminalized, then legitimized, and now protected. NAMBLA is jealous. The polygamists want to be next---and I don't know why they shouldn't be next. I have never heard a convincing explanation of why the destruction of sexual morals will stop at homosexuality. Judge Reinhardt certainly doesn't explain it when he posits "sexual orientation" as a "core identifying characteristic". How is bestiality or sexual masochism any less of a sexual orientation than homosexuality?

For that matter, why limit this to sexual pleasure? Suppose that I really love to pick my nose in public, and people discriminate against me because of it. Or suppose that I find deep pleasure in public nudity, and I'm persecuted for it by clothes-centric bigots. Or suppose that I enjoy some strange hobby that others find unsettling, like the guy who maintains this web site. Shouldn't this be a general principle that no one can discriminate against anyone else's pleasure? And once you see the principle fully developed, can't you also see that it's impossible to sustain?

I've never seen anyone even try to explain how the principles at play in this case, Romer v. Evans, Lawrence v. Texas, etc. can fail to expand eventually to other sexual practices. To paint the issue as malicious bigots versus oppressed gays is either ignorance or propaganda. If you want a constitutional right to hedonism, then say so. If you honestly believe that these principles won't extend beyond homosexuality, then explain why. But refusing to even address the question and deny the other side a voice---which is essentially what the school did here, and what the student protested---is intellectually dishonest.
4.21.2006 7:24pm
Clayton E. Cramer (mail) (www):

You show me a socialized system OF ANY KIND, and I will show you a necessary restriction of rights that is the direct result thereof.
This is all very true--but irrelevant. It is rather like pointing out the damage that gravity does. Public schools are almost as inevitable as gravity.
4.21.2006 7:25pm
Clayton E. Cramer (mail) (www):
steveh2 writes:


I also think that it was right for the Ninth Circuit to consider context. "Homosexuality is shameful" must be considered in light of the fact that homosexuals are often subject to physical violence, and even death, simply for being (or appearing to be) homosexual. It simply ignores reality to pretend otherwise.
Reality check: how many homosexuals are murdered each year for being homosexual? Is that a disproportionate fraction of the population? "Everyone knows" isn't going to persuade me.

Men are disproportionately victims of murder. (About 3/4 of murder victims are men.) Does this mean that anti-male T-shirts can be prohibited at school, but anti-female T-shirts can't be?
4.21.2006 7:30pm
Colin (mail):
NFNF:

anything that is an insult to anything resembling Christianity is by definition protected speech in our modern world. Hostility towards Christians is a good thing, so far as the ACLU and other modern, progressive thinkers are concerned. Good, but not mandatory, not yet anyway.

Very perceptive. We're just one small step away from putting all of you horribly persecuted and utterly powerless Christians in concentration camps. You can't hear me, but I'm laughing an evil laugh and twirling my wicked secular moustache. My beady progressive eyes are glinting, too.

Hysterical hyperbole really, truly doesn't do anything to convince anyone of your underlying claims. It might make you feel justified to say it, and it might tickle readers who already agree with you, but to the rest of us it just makes you seem so partisan and irrational that the rest of your commentary gets devalued.

Speaking of which, Ben Bateman, you said:

I've never seen anyone even try to explain how the principles at play in this case, Romer v. Evans, Lawrence v. Texas, etc. can fail to expand eventually to other sexual practices.

Really? Are you sure? Because I'm sure I've seen that very discussion here, on this blog, more than once. I've also seen it in just about every forum, internet or otherwise, in which the legal treatment of homosexuality is addressed. You might not be persuaded by the arguments, but please don't pretend that no one is even bothering to address the issue.
4.21.2006 7:34pm
Mackey:
Clayton,

Since I had at least suggested I myself was familiar with the case law, the Romer and Lawrence examples aren't news to me.

First, I asked for 3 and note you came up with only 2.

Second, because I promised to go toe-to-toe, 2 of my own... Dale and FAIR. No "solicitous treatment" there.

And I've got more waiting, as if someone could point to a 3rd example.
4.21.2006 7:39pm
BobN (mail):
Houston Lawyer:


Apparently I'm missing something. When did "sexual orientation" become a protected class? What the hell is sexual orientation anyway? Does polygamy qualify? Does incest qualify? This is apparently just another way of giving another group preferential treatment denied the majority.


Sexual orientation is why you like sex with your wife and have no sexual interest in Rob Lowe.

Unless you're attracted to both, in which case you're bi.

As for preferential treatment, it's absurd to deny that this society isn't pro-hetero.
4.21.2006 7:41pm
Ben Bateman (mail) (www):
Colin:
I'm sure I've seen that very discussion here, on this blog, more than once. I've also seen it in just about every forum, internet or otherwise, in which the legal treatment of homosexuality is addressed.

A coherent argument from the left on that precise issue? Great! Link or paste it.
4.21.2006 7:42pm
BobN (mail):

Hetero kids aren't being beat up in hallways for being straight, but they get beat up for wearing glasses, or being smart, or any of a number of reasons that you would not consider as powerful an argument for suppressing free speech.


I have a great deal of experience in this area. Perhaps you don't or just didn't pay attention to what the other boys were calling you when they beat the crap out of you. Trust me, they weren't using phrases like "take that, you four-eyes!" or "smart kids suck".
4.21.2006 7:43pm
BobN (mail):
Ben Bateman


The event was specifically designated as a protest against discrimination against homosexuals. That implies that such discrimination is a major wrong to be righted. And that implication is a slap in the face of those who think that such discrimination is morally right, or even mandated by their religion. Your insult/praise distinction is untenable.


Every single day in this country, some kid is beaten for being gay. Every week in this country, some kid kills himself or herself because he/she is gay. If your religion doesn't find that something untenable, yours is a very poor religion.
4.21.2006 7:46pm
Ben Bateman (mail) (www):
Mackey: "First, I asked for 3 and note you came up with only 2."
When you're talking about US Sup Ct cases, how many do you need? Two seems like plenty.

There's the case we're discussing right now. Then there's State v. Limon, which immediately applied Lawrence to children. Then there are the two Goodridge cases in Massachusetts on marriage. Also, wasn't there a Hawaii Sup Ct case on gay marriage in the mid-nineties? That's five or six, depending on whether you combine the two Goodridge cases.

Besides, the standard you're proposing is silly. Would you count the number of cases on abortion, and conclude from that low number that the judiciary hasn't been very involved? It takes only one opinion written by a high court in broad language to turn any area of law upside down.
4.21.2006 7:52pm
Ben Bateman (mail) (www):
BobN: Do you not understand the difference between discrimination, assault, and suicide?
4.21.2006 7:55pm
NonFederal NonFarmer (mail):
I wrote:

anything that is an insult to anything resembling Christianity is by definition protected speech in our modern world. Hostility towards Christians is a good thing, so far as the ACLU and other modern, progressive thinkers are concerned. Good, but not mandatory, not yet anyway.

Colin replied:
Very perceptive. We're just one small step away from putting all of you horribly persecuted and utterly powerless Christians in concentration camps. You can't hear me, but I'm laughing an evil laugh and twirling my wicked secular moustache. My beady progressive eyes are glinting, too.

Inferior sarcasm aside, do you have anything to refute my claim? Apparently not, so I shall expand upon it.

Do you recall "Piss Christ"? Sure you do. Now suppose that someone wanted to get taxpayer money to create "Piss Mohammed", an image of Mohammed suspended upside down in a beaker of urine...what do you think the odds would be they'd succeed in getting an NEA grant? Zero, I'd say, and furthermore no gallery on the planet would dare to exhibit it, no matter how "progressive" the management might be. Suppose that someone wanted Federal funding for an exhbition of famous homosexuals who died of AIDS, suspended in jars of urine, think that would fly? No, of course not. How about a Federally funded exhibition of pieces of beef carved into the shape of Hindu gods, would that work? I do not think so. No, these are all too hateful and hurtful to even consider, but Piss Christ, why, that's different; it's daring, it's transgressive, it's a blow against the establishment, man, it's bold, it's a statement...and, of course, it attacks Christianity. Therefore it cannot be criticized, and must be Federally funded, right?

Turning from physical art to the stage, how about an off-Broadway production that portrays Patient Zero as inspired by Satan to infect as many men as possible with his disease, would that get by the modern censors, or would it be shut down? When the picketing started, would it be "protected speech", or "hate speech"? To ask the question is to answer it. But Christians who objected to the portrayal of Jesus as having homosexual relations with his followers were, of course, denegrated by all the free-thinking people. No, the fact of the matter is, anything offensive to Christians is automatically going to be considered fully protected by the 1st Amendment and the case we are discussing shows that anything the gay lobby doesn't like is not going to automatically get any protection at all.

Hysterical hyperbole really, truly doesn't do anything to convince anyone of your underlying claims. It might make you feel justified to say it, and it might tickle readers who already agree with you, but to the rest of us it just makes you seem so partisan and irrational that the rest of your commentary gets devalued.

There is nothing hysterical or hyperbolic about the facts, and I'm sticking to them. Have you even bothered to read what Judge Reinhardt actually wrote?
4.21.2006 8:26pm
BobN (mail):
Yes, I understand the difference. Do YOU understand the relationship between them?
4.21.2006 8:26pm
JRL:
Is there a difference in the logic contained in the following 2 statements?

"That student disrupted the educational process of others by wearing a t-shirt that said 'homosexuality is shameful.'"

"That woman provoked her own rape by wearing those tight jeans and that low-cut shirt."
4.21.2006 8:32pm
Colin (mail):
Really, Mr. Bateman, the analysis you're looking for is not hard to find--you don't need to ask someone to fetch it for you. I didn't even have to leave this blog, and even though the poster-specific browse function doesn't seem to work for Professor Carpenter's posts it only took a few seconds to find one of his dialogues on the subject: http://volokh.com/posts/1130982815.shtml

It's silly to pretend that no one is addressing the slippery-slope argument.
4.21.2006 8:33pm
Mackey:
Ben,

I don't think there's a way to make this observation without sounding slightly condescending.... but we aren't talking about "Supreme Court" cases... we're talking about federal court cases. And Goodridge, and Limon, and of course the Hawaii Supreme Court case (Baehr) are all state cases.

The vast majority of federal jurisprudence installed in "the Bowers era" remains, at least notionally, good law. In addition, the majority of gay rights cases still come out against homosexual plaintiffs. Goodridge has not led to a marriage revolution, nor does it appear quick to. For every Limon (again, a state decision), I am certain I can point you to a Lofton (a significant loss for gay rights in Florida)

Again, I chose "3" because I was of course aware that Lawrence and Romer would make the hit list. But let's not kid ourselves that this is tremendous "solicitous treatment from the judicial elite of the federal courts."
4.21.2006 8:36pm
TriMT7 (mail) (www):
Isn't this discussion almost moot anyway? Schools and school children have NEVER been given the same absolute protections of their rights that exist "in the real world" -- and for good reason.

One of the tenants of unfettered free speech is that if you don't like the speech, you can walk away. Leave. Go elsewhere. Since school attendance is MANDATORY and students cannot "leave" in order to avoid the "speech", then obviously the rationale for having rules that wouldn't apply "in the real world" are sound.

Clayton E. Cramer: You misread my post. I said that they should be free to wear a "straight pride" shirt if they want to, so long as it does not signify a direct attack on "others". But yes, I stick by my assertion that anyone heterosexual doing so is being a juvenille and confrontational, again, for the very reasons I posted. (Anyone who has read the histories of any "pride" movement (black, etc.) would see the difference between the two immediately).

Ben Bateman: Re: Gay pride event. What's your point? The gay pride event is STILL not meant to denigrate anyone, which means the function and Re: Straight pride shirt. context of the speech (all obviously relevant in any 1st Amendment discussion) are not the same as the kid walking around with a shirt that attacks a particular group for holding certain immutable characteristics. The day it's as easy for a homosexual student to change their sexuality as it is a Christian student to change his or her religion is the day I grant moral equivalence to the two distinct situations.
4.21.2006 8:37pm
NonFederal NonFarmer (mail):
TriMT7 wrote:
One of the tenants of unfettered free speech is that if you don't like the speech, you can walk away. Leave. Go elsewhere. Since school attendance is MANDATORY and students cannot "leave" in order to avoid the "speech", then obviously the rationale for having rules that wouldn't apply "in the real world" are sound.

Ok, so if a student finds the MANDATORY cheer-session promoting homosexuality to be offensive and decides to walk away from it, i.e. refuse to attend, what happens? Does he get coerced into going to the MANDATORY experience anyway? And if the student is coerced into attending the MANDATORY brainwashing session specifically intended to teach him that homosexuality is good and anyone who disagrees is a hate-filled, brain-dead bigot, and does so wearing a black armband in protest, what happens then? Is such a silent protest "protected free speech", or is it something that has to be banned by "sound limitations"?

Why do these "sound" limitations on free speech only apply to the beliefs that you don't like, hmm?
4.21.2006 8:57pm
Mr. Pedant (mail):
One of the tenants of unfettered free speech is that if you don't like the speech, you can walk away.

Just out of curiousity, how much rent do the tenants of free speech have to pay nowadays?
4.21.2006 9:03pm
Ben Bateman (mail) (www):
Colin: That post, and others like it, are predicated on the idea that SSM was solely a sex-discrimination issue. I always thought that that was a silly predicate, and Judge Reinhardt has proven me out. He has confirmed in this case that the underlying principle is sexual-orientation discrimination, which is different. Put differently, I wasn't talking about Goodridge, I was talking about Lawrence, and its "mystery of human life" passage. But you obviously read different blogs than I do. Maybe you can find someone arguing from the left that Lawrence won't expand. I would be interested to see it.

Mackey: I didn't notice that your challenge was limited to federal court cases. Again, what's the point? Are you saying that only some courts are eagerly trampling the will of the people, while others are playing by the rules, so we shouldn't complain?

TriMT7: If you don't already see the hostility involved in an explicitly gay even promoted by GLSEN, then I doubt that I can make you see it. But I'll try.

Suppose that a local Mormon church joined with a public school's administration to raise awareness of the serious problem of discrimination against Mormon. Kids tease them and make fun of their beliefs. It's a terrible problem. So the public school is going to lecture the kids at length about how they must never, never, never say anything mean to or about Mormons, with a thinly veiled threat of official punishment.

Do you think that the atheist kids, or anyone hostile towards the Mormon religion, might feel a little threatened by that? And if a kid gets in trouble for coming to school wearing a t-shirt with some obnoxious statement about Mormons, whose side would you be on?
The day it's as easy for a homosexual student to change their sexuality as it is a Christian student to change his or her religion is the day I grant moral equivalence to the two distinct situations.

Have you considered that some of these kids grow up in extremely religious homes, where changing their religion is effectively impossible until they leave home?
4.21.2006 9:21pm
Mackey:
Ben,

No worries re: the federal/state thing. You asked, "Again, what's the point? Are you saying that only some courts are eagerly trampling the will of the people, while others are playing by the rules, so we shouldn't complain?"

First, my point, to be crystal clear, is that Anonymous22's comment that "this decision is a further example of the generally solicitous treatment homosexuals have received from the judicial elite of the federal courts" erroneously assumes "generally solicitous treatment."

So, yeah, in that sense, maybe my point _is_ "that only some courts are eagerly trampling the will of the people, while others are playing by the rules." (ie, some = only a few)

To take the comment more directly, however, you seem to contrast "trampling the will of the people" and "playing by the rules." Isn't the will of _these_ people, apparently, not to have the tee-shirt in their school? In both speech and discrimination, isn't trampling the will of the people often playing by the [constitutional] rules?

Now, if you just meant to say that the Romer and Lawrence courts weren't "playing by the rules," I'd certainly welcome your elaboration. Those "rules," just so you know, are Cleburne and Griswold, respectively.
4.21.2006 9:30pm
Ben Bateman (mail) (www):
Mackey: If we could start over, I would probably support simply not having a constitution with any substantive law in it. I'm also pretty queasy on the idea that the 14th amendment applied the Bill of Rights against the states. But we're stuck with both.

I'm sure that questions about the philosophy of reading constitutions have been hashed out many times before on this blog, so I'll just say that I'm a believer in original intent. People's words mean what they intend them to mean, to the extent that you can figure that out.

The US Constitution says nothing about homosexuality. It does not grant a "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" which somehow turned into a constitutional mandate for the decriminalization of sodomy. So Romer and Lawrence were not 'playing by the rules', because they weren't consistent with any constitutional words or intent.

On the other hand, the US Constitution includes some actual words that rather explicitly pertain to free speech. And the intent behind those words was heavily aimed at political speech. Again, I'm not wild about applying the Bill of Rights to the states, nor about substantive constitutions in general. But if we clear those hurdles, then at least Kozinski's opinion had something to do with words that actually appeared in a written document on which the people or their representives voted. That's playing by the rules, as I see it. Or, to put it more precisely, it's acknowledging the consent of the governed as the ultimate source of law, rather than whatever principles of justice the current judiciary happens to favor.
4.21.2006 9:52pm
Mackey:
Ben,

I mean, honestly, just how pedantic do you want me to be?

The Constitution does not say anything explicit about homosexuality. It does, however, reference deprivations of "liberty" without "due process" and it does refer to the "equal protection" of the law.

The Constitution does include words that "rather explicitly pertain to free speech." Those words also "rather explicitly pertain" to Congress. Your queasiness is your own problem--I won't let you vomit unevenly. The only fashion in which a speech infringement like this one is unconstitutional is through a broad-brush reading of _state_-action. So, I won't myself stomach a complaint about incorporation generally without a corresponding complaint about the speech infringement here.

Nor does the Constitution say anything explicitly about a "clear and present danger" standard or a "compelling state interest" requirement. These are judicial extrapolations and it proves difficult for anyone to defend some and not others without directly criticizing the others on their merits.

So... does the Equal Protection Clause apply to _all_ citizens (or just African-Americans)? Does it prohibit irrational animus? Does the Due Process Clause protect privacy? Does it protect contraceptive and other reproductive rights? We might have an intelligent conversation on these topics--perhaps for another forum or thread, admittedly. I think the notion that there is some extraordinary judicial solicitude for homosexuals is wrong in law. But the much much more basic point is that it is simply wrong in fact; neither state nor federal courts have demonstrated such support. Victories remain few and far between, and limited where they arise.
4.21.2006 10:13pm
jrose:
Hans,

Your point about limiting or overruling Tinker is interesting. However applying Tinker, is a T-shirt which says "Judaism is shameful", worn by a high-school student on religious-toleration day, protected speech?
4.21.2006 10:29pm
SLS 1L:
Owen:
The t-shirt in question said "homosexuality is shameful." It did not attack gays as individuals (i.e. "homosexuals are shameful"), but rather merely expressed a viewpoint on homosexuality.
Um, no. Homosexuality is an enduring status or quality; attacking "homosexuality" is indistinguishable from attacking homosexuals, just as attacking "being black" is indistinguishable from attacking black people.

Schools have to be able to restrict derogatory comments about other students, especially when the quality being derogated subjects students to abuse in other contexts.

So: "Being black is shameful" (when there are black students in the school): Yes or no? "AIDS is shameful" (when there are students in the school with AIDS): Yes or no? "Depression is shameful": yes or no?
4.21.2006 10:43pm
Ben Bateman (mail) (www):
Mackey, do you really think that Lawrence and Romer were limited? I seem to remember some very broad language in both.

I don't see the relevance of counting opinions or judges as an indicator of where the law will go in the next several decades. Most substantive law develops according to the logical consequences of its big principles, not according to political whim. Internally consistent principles tend to grow, and unprincipled exceptions tend to shrink.

For example, business entities law a century ago was mired with all sorts of traps for the unwary and burdensome rules. Those rules fell steadily by the wayside over the years, but the core ideas survived and flourished: the public policy of granting limited liability to business owners, and the idea that business owners should be able to arrange their relationships however they want. Today, at least in Texas, the business entities law has been pretty thoroughly stripped of the illogical garbage, leaving only the principled stuff. I think that's how law generally works.

This doesn't mean that the principle itself must work in a larger sense. It need only be internally consistent, and the courts will follow it. For example, I hear that the recent bankruptcy legislation pretty much ended chapter 7 bankruptcies for individuals. That was a big change in principle of the sort that only legislatures should enact. I think that it was a terrible change, but I don't expect the courts to try to creep around it. The new principle is: Push individuals into payment plans. And that's what the courts should do. It doesn't matter how many courts think it's a good idea. The principle is set, and the bankruptcy courts will follow that principle until Congress changes it.

That's what I see in Lawrence. It's a broad declaration that someone's favorite method of sex is bound up in their mystical and super-protected right to privacy. That's a big concept, and its implications are horrifying. But as much as I dislike the principle, it is internally consistent. And so it doesn't matter how many district or circuit-court judges like the idea. The US Sup Ct has decreed the big principle concerning government action and sexual orientation, and the courts are going to follow it. The judicial system is not a democracy.
4.21.2006 10:50pm
Mackey:
The judicial system is not a democracy, and the judicial system is not supposed to be either a democracy or particularly democratic.

And not only do I disagree with the suggestion that law strips away illogical details for broad principles, I think you both overstate the principles described in Lawrence and over-credit Lawrence for their introduction into constitutional law. Lawrence did not introduce the constitutional concept that aspects of an individual's sex life, like contraception (even for unmarried women!!), are private.
4.21.2006 11:49pm
BobN (mail):

It's a broad declaration that someone's favorite method of sex is bound up in their mystical and super-protected right to privacy. That's a big concept, and its implications are horrifying.


Doesn't love have any bearing on your sexuality? Is it really all about preferred friction?
4.22.2006 12:25am
Hans Gruber (www):
Jrose,

It depends. If there is evidence that restricting that speech is "necessary to avoid substantial interference with school discipline," then, yes, it can be constitutionally prohibited. Again, my criticism is not so much based on the result (though I think Kozinksi is correct in applying Tinker) as much as it is the reasoning.

This opinion would be more persuasive, and less scary, if it didn't single out a particular viewpoint (or a set of them). A more comprehensive, viewpoint neutral ban might also be constitutional. But Tinker, I think, is clear on the constitutionality of selectively censoring viewpoints without evidence that the ban is necessary to avoid interference with school discipline.


Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.


This decision sidesteps the obvious by inventing a new right--the right to be free from meanies if you're a member of a "historically oppressed" or "vulnerable" minority. Even inventing a right of every student to be free from meanies would be inconsistent with Tinker, though it would be less offensive to free speech principles.

It may be possible to establish that either a "Homosexuality is shameful" shirt or a "Judaism is shameful" shirt would be disruptive enough to be constitutionally prohibited. But that would depend on what evidence the school produced. Thus my answer is: it depends.
4.22.2006 12:50am
Hans Gruber (www):
"Homosexuality is an enduring status or quality; attacking "homosexuality" is indistinguishable from attacking homosexuals, just as attacking "being black" is indistinguishable from attacking black people."

This is one of those oft-repeated phrases that means nothing. There are a lot of qualities that are enduring which we find immoral. To name one, pedophilia (no, I am not comparing homosexuals and pedophiles). But it does seem to be an enduring status or quality. It's hard to "cure" these sickos just as it's hard to convert a homosexual to a heterosexual. So what if a quality is enduring if that quality is immoral?

The difference, of course, is that you believe that homosexuality is amoral (as do I) and pedophila is immoral (as do I). It doesn't make any difference that each quality is enduring and resistant to change or remedy.

Let's not kid ourselves that the opprobrium assigned to homosexuality can be dissolved with hollow slogans like "Homosexuality is enduring, it's just like race!" To convince the public that homosexuals are not gross or immoral sinners, one must address the underlying morality of the act.
4.22.2006 1:19am
Marcus1 (mail) (www):
So you all attacking the decision think there is a constitutional right to be rude in school?

I think the idea of such a constitutional right is preposterous. As a policy matter, I think it's simply a pretty bad idea.

Yes, the logical conclusion of liberalism may be that kids should not be allowed to say spiteful things towards each other in school. I'm amazed "conservatives" are saying that schools should not be permitted to enforce any standards of conduct.
4.22.2006 2:28am
SLS 1L:
Hans - I would actually argue that what is immoral is sexual acts directed at children, not the quality of being sexually attracted to children (though arguably it might be immoral for some people who have that quality not to seek psychological counseling). In any case, I was not arguing for some kind of general moral acceptance of homosexuality, and agree with you that "homosexuality is immutable, therefore gay sex is OK," is a crappy argument.

Also, aren't the cases linguistically distinguishable? My sense is that 'pedophilia' is often used as a description of acts. Dictionaries will list that definition for 'homosexuality,' but that use is pretty much dead.
4.22.2006 2:43am
Hans Gruber (www):
Marcus1,

Again, the problem is not that the Court created a right to be free from rude speech. They didn't do this. They only created a right to be free from rude speech if you're a member of a "vulnerable" and "historically oppressed" minority.

Further, at least in my opinion Tinker should be overruled. But that is not the job of the inferior courts. Tinker, properly applied, may yield unsatisfactory results, but it is the law of the land.

So, yes, under Tinker one does have a right to be rude so long as it does not substantially interfere with school discipline.
4.22.2006 2:43am
SLS 1L:
Marcus1 - Amen. But remember that these are conservatarians, not conservatives.
4.22.2006 2:44am
David M. Nieporent (www):
So you all attacking the decision think there is a constitutional right to be rude in school?

I think the idea of such a constitutional right is preposterous.
Perhaps it is, but

1) That's the law of the land nonetheless, and the Ninth Circuit doesn't get to overturn that; and
2) Indeed the Ninth Circuit didn't find to the contrary; they just said that there's a special exception for Reinhardt's favored minorities.

Incidentally, you know what else is preposterous? Your attempt, earlier in this thread, to pretend that "verbal assault" is something other than word soup. (Note that if the messages in question amounted to threats, then they'd already be constitutionally unprotected. But neither the school nor the court claimed that they were such. They, like you, just decided that "offensive" = "unprotected.")
4.22.2006 3:00am
jrose:
Hans,

In my hypothetical, assume there is no disruption to school discipline. Then in your view (applying Tinker), is a T-shirt which says "Judaism is shameful", worn by a high-school student on religious-toleration day, protected speech?
4.22.2006 10:18am
Owen (mail):
SRS 1L,

Um, no. Homosexuality is an enduring status or quality; attacking "homosexuality" is indistinguishable from attacking homosexuals, just as attacking "being black" is indistinguishable from attacking black people.

That's not true. The word "homosexuality" can refer either to the state of feeling attraction to members of the same sex, or to erotic activity with members of the same sex. The former would be indistinguishible from attacking homosexuals (although this could be due to their percieved behavior), while the latter would be solely an attack on homosexual activity. It could simply be a "love the sinner, hate the sin" line of reasoning, at least according to Merriam-Webster.

In either case, homosexuality is fair game. It's a divisive, unresolved social issue, and if you're going to clamp restrictions on one side, you've got to place them on the other. What's being asked for here is a viewpoint-neutral standard, to where a person who doesn't care for homosexuality is just as free or not free to express his view as a person who believes that homosexuality is great. If you don't believe in this parity, then I don't believe you have any respect whatsoever for the First Amendment. The heart of free speech is respecting viewpoints you disagree with, irrespective of whether you feel they might be an "attack" or simply make you offended.
4.22.2006 10:34am
Owen (mail):
Marcus 1,

So you all attacking the decision think there is a constitutional right to be rude in school?

Let's test your theory, shall we? Would it be ok for a gay student at a school that's 90% conservative Christian to wear a gay pride t-shirt? Many people would consider that rude. I thought you didn't favor the "hecker's veto?" A rudeness exception to the First Amendment would be an interesting addition, to say the least.
4.22.2006 10:39am
Marcus1 (mail) (www):
David Nieporent,

>Incidentally, you know what else is preposterous? Your attempt, earlier in this thread, to pretend that "verbal assault" is something other than word soup.<

See, I very much liked the "verbal assault" language, because it gets around an ambiguity which EV and others like to exploit in the word "offensive": i.e., Is the speaker actually verbally assaulting other people, or are the listeners simply raising a fuss based on this or that implication?

Essentially, it's the difference between me saying something like "Johnny is a jerk, screw Johnny, I hate Johnny, Johnny is a degenerate, Johnny is a shameful human being," etc. or saying "I like to eat hamburgers on occasion." Sure, a vegan might get offended by the latter comment, but it wasn't a verbal assault. The other ones were. I don't think there should be a right to verbally assault in school. But that doesn't mean I'm going to silence the kid who says he likes hamburgers, simply because somebody gets offended and raises a fuss.

"Verbal assault" really gets to the heart of the matter. It's sensible as a school rule, and it does not discriminate against particular viewpoints, except incidentally to the extent that such newpoints dwell on verbally assaulting people.

Another point, although I don't have time to get into it: School is mandatory. That means Jane with her two moms and John with his boyfriend have to go. That means the school has an obligation to prevent a hostile environment. This is particularly why verbal assaults against minorities are troublesome, because these minorities are being made to participate in the environment. Of course, that raises a bunch of issues, but I can't get into them at the moment.
4.22.2006 12:12pm
NonFederal NonFarmer (mail):
Marcus wrote:
So you all attacking the decision think there is a constitutional right to be rude in school?

The United States Supreme Court said just that in _Tinker_, a decision that liberals have loved for years as a great defense of free speech. I believe the decision has been nentioned in this thread a time or two, please make a note of it.

I think the idea of such a constitutional right is preposterous. As a policy matter, I think it's simply a pretty bad idea.

Then take it up with the Supreme Court, not me, it wasn't my idea. I didn't think _Tinker_ was a good idea at the time, and nothing in the ensuing decades has changed my opinion. Note, however, that I'm not now, nor have I ever been, a Justice of the US Supreme Court, so my opinion isn't very significant.

Yes, the logical conclusion of liberalism may be that kids should not be allowed to say spiteful things towards each other in school.

The logical conclusion of liberalism is seen in Reinhardt's decision: that some students must be silenced, while other students must be heard, and the court gets to pick and choose who shuts up and who doesn't. Clear enough?

I'm amazed "conservatives" are saying that schools should not be permitted to enforce any standards of conduct.

That's quite a strawman you've chosen to fight. When you want to actually discuss what Reinhardt wrote, feel free to do so.
4.22.2006 1:25pm
NonFederal NonFarmer (mail):
SRS1L wrote:

Homosexuality is an enduring status or quality; attacking "homosexuality" is indistinguishable from attacking homosexuals, just as attacking "being black" is indistinguishable from attacking black people.

Alcoholism is also an enduring status or quality. Following your logic, we cannot offer any programs in public schools against alcoholism, because then we are attacking someone's enduring status or quality, right?

Say, what if homophobia is an enduring status or quality? Does that mean that it is prohibited to say it is shameful?
4.22.2006 1:40pm
Ciarand Denlane (mail):
NonFederal NonFarmer wrote:
Alcoholism is also an enduring status or quality. Following your logic, we cannot offer any programs in public schools against alcoholism, because then we are attacking someone's enduring status or quality, right?

Say, what if homophobia is an enduring status or quality? Does that mean that it is prohibited to say it is shameful?



1. For some people, or under some theories, the government's right to suppress speech, may, other factors being closely enough balanced, turn on whether speech expresses antipathy toward a group with an immutable characteristic ("being black is shameful") or antipathy toward a voluntarily chosen viewpoint or status ("anyone who believes in Christ is shameful"). For reasons I've expressed above, I'm not comfortable with the government drawing that line (though I have no problem with schools doing so, as long as they're not government-run). But my reasons for reaching that result are not likely to be accepted widely, and I recognize that for some people the First Amendment issue in some otherwise close cases may turn on whether speech is directed at a group with an immutable characteristic.

2. As NonFederal NonFarmer's comments help illuminate, it is not altogether clear where the precise line is. If (as I guess many philosophers tell us) there is no free will and everything is determined, then criticism of any characteristic of anyone criticizes them for something that, in some sense, they can't help. But we have laws, courts, and police because we either don't believe, or don't believe we should act as if we believe, that everything is determined, and so we punish people for doing wrong and reward them for doing right. The line between what we think people can or cannot help is not crisp (think of all the back-and-forth the law has had with the insanity defense), but it is a line that does make sense to try to draw in at least some circumstances.

3. As NonFederal NonFarmer's alcoholism example illustrates (and pedophilia would be even a tougher example to deal with), some characteristics that are, as a practical matter, pretty far over the indistinct borderland where immutable begins, neverthless seem to present different cases that ought to be more open to criticism. In some cases, that is because the criticism of the condition (as in NonFederal's example) is also or instead an attempt to cure a condition that those suffering from it (most alcholics, I don't know about pedophiles) would want to have cured. (I am neither a pedophile nor an alcoholic, but I do suffer from another kind of addiction, that I would certainly not mind someone being able to cure [although I might say it was none of their business if they actually tried].) In other cases (here, more strongly pedophilia than alcoholism), society has decided that the condition is normatively inappropriate (although, even with pedophilia, should we not still strive for hate the sin, love the sinner).

4. Well, the speaker in this instance probably believed that, if criticism of some innate characteristics is out of bounds (blacks are shameful), criticizing homosexuality doesn't fall within the scope of that rule, because it isn't innate, it is curable, and it is normatively inappropriate. Many of the targeted group may hold the opposite view on one or more of those points. But for those who accept the notion (about which, recall, I express skepticism above) that in some otherwise borderline cases the validity of a speech restriction turns on whether it expresses antipathy toward a group with an innate characteristic, then it is necessarily the government (not the speaker and not the audience) that gets to decide the condition is innate, not curable, and not normatively shameful. If that's what the validity of the restriction ends up turning on, the government's decision here was at least reasonable. If the standard is whether it is right, not merely reasonable, then it was right (did I mention that I'm not recommending that one analyze the issue so that one does get backed into the corner of making First Amendment protections turn on letting the government make decisions like that on a point that many of my fellow citizens disagree with and have a First Amendment right to address?)
4.22.2006 2:43pm
Neil H:
Following your logic, we cannot offer any programs in public schools against alcoholism, because then we are attacking someone's enduring status or quality, right?

If there was a group of people predisposed to alcoholism who viewed their alcoholism as a good thing and regarded attempts to supress and restrict it as unwelcome and unwanted, then you might have a point. Do any such groups exist?
4.22.2006 2:44pm
Hans Gruber (www):
"Then in your view (applying Tinker), is a T-shirt which says "Judaism is shameful", worn by a high-school student on religious-toleration day, protected speech?"

Yes, under Tinker, that would be protected speech. The majority got around this by claiming that minorities that are "vulnerable" or "historically oppressed" have a right to be free from offensive or demeaning speech. Others have no such right under this decision.

Again, I believe schools should have the ability to control their message, protect students, and facilitate a productive learning environment by and large without interference from the judiciary. Schools should have considerably more discretion than they know enjoy under Tinker. But this decision coupled to Tinker is not free speech at all; the majority thinks it's OK that the judiciary support speech it likes (protesting wars, presidents) and silences speech it doesn't like (speech offensive to "vulnerable" minorities).
4.22.2006 3:15pm
NonFederal NonFarmer (mail):
I wrote:
Following your logic, we cannot offer any programs in public schools against alcoholism, because then we are attacking someone's enduring status or quality, right?

Neil H. wrote:
If there was a group of people predisposed to alcoholism who viewed their alcoholism as a good thing and regarded attempts to supress and restrict it as unwelcome and unwanted, then you might have a point.

The reducto is a common tool of elementary logic. Please consider learning elementary logic, it will help in clear thinking and make such errors as you committed above less likely.

Do any such groups exist?

Yes. You can find them in every city, often in bars where "everybody knows their name"...
4.22.2006 4:04pm
SLS 1L:
Owen - that use is all but dead. The problem here is that dictionaries, despite that judges often seem to think, are crappy guides to the way language is actually used and what it actually means.
4.22.2006 4:19pm
BobN (mail):
I would remind posters that the people of the state of California have made it quite clear, through their legislature, governor, county boards, school boards, city governments, etc., that (almost) equal treatment of homosexuals IS public policy.

People are, of course, free to dissent, especially if their parents encourage them to "assert" themselves.
4.22.2006 4:20pm
jrose:
Hans,

Unlike you, I'm not comfortable with a school district that has a free hand to suppress opposition to a war. Yet, I am also not comfortable when a school district doesn't have the ability to suppress "Judaism is Shameful", or any speech which manifestly demeans a class of people simply because they belong to that class (minority or majority). I am persuaded that injury occurs and we should be able to distinguish viewpoints on that limited basis (as we do now for viewpoints which disrupt).
4.22.2006 4:39pm
Hans Gruber (www):
"Unlike you, I'm not comfortable with a school district that has a free hand to suppress opposition to a war. Yet, I am also not comfortable when a school district doesn't have the ability to suppress "Judaism is Shameful", or any speech which manifestly demeans a class of people simply because they belong to that class (minority or majority)."

In other words, your positions have little to do with free speech and everything to do with advancing your personal agenda--opposing war good, opposing homosexuality bad. Pretty much any position can be construed by some group to be demeaning. I'm sure at least some of those with family members who died in Vietnam didn't appreciate the activism, and felt it "demeaned" their loved one's sacrifice. The passions felt over the Vietnam war were probably more likely to disrupt education than the passions over the morality of homosexuality today (at least this is my feeling).

"Iraq is a mistake, Republicans should be ashamed" is mild but probably offensive to some. Same with "homosexuality is shameful." I can understand and sympathesize that this statement is hurtful to homosexuals, but that goes for a lot of beliefs which divide this country. Though I disagree with the agenda of the student, the message was civil enough to fall outside of the insult/fighting words category, and is probably less likely to disrupt the educational environment or incite violence than a lot of protected speech.

I commend you for agreeing that every student should be equally protected, but at the same time remain puzzled why you seem intent on defending this decision, which does the opposite. Again, it's one thing to say that insults or demeaning speech sufficiently disrupts the educational environment and can therefore be prohibited. But the majority didn't say this, it instead chose to take sides in the culture war--a gay student is free to demean the Christian right, but a Christian student is not free to (or as free at least) to demean homosexuality. That is what is fundamentally wrong with this decision. Whatever other rationales might justify the result, we are confronted with the shocking proposition that, at least within the school setting, certain favored minorities have more free speech than the everybody else.
4.22.2006 6:11pm
jrose:
Hans,

I am not defending the decision. In my view, it is inconsistent with Tinker and I would still fault it if it came from SCOTUS as a modification of Tinker.

What I was positing was a different modification of Tinker - not as sweeping as yours - which would add only one exception to protected speech: speech which manifestly demeans a class of people simply because they belong to that class.

That additional exception does not endorse any personal agenda about war, homosexuality or anything else. "Iraq is a mistake. Republicans should be ashamed" does not demean Republicans simply because they are Republicans. "Republicans are shameful" does. If Harper had worn only what was on the front of his shirt, "Be ashamed, our school has embraced what God has condemned" and "I will not accept what God has condemned", those should be protected speech in my view (unless they are disruptive).
4.22.2006 7:58pm
GMUSL 2L (mail):
Marcus1, what do you mean by verbal assault? And what does the opinion mean? How is a "verbal assault" different from a regular assault?

It's pretty clear that reading a statement without speaking it aloud cannot be a verbal assault because it is not verbal. But as other posters have mentioned, statements rising to the level of assault (i.e., those which put a reasonable objective observer in imminent fear of physical harm), such as "I'm going to kick the crap out of you, you [expletive] [slur]!" are not and have never been protected.
4.22.2006 9:27pm
Neil H:
NonFederal NonFarmer:
Following your logic, we cannot offer any programs in public schools against alcoholism, because then we are attacking someone's enduring status or quality, right?

Me:
If there was a group of people predisposed to alcoholism who viewed their alcoholism as a good thing and regarded attempts to supress and restrict it as unwelcome and unwanted, then you might have a point.

NonFederal NonFarmer:
The reducto is a common tool of elementary logic. Please consider learning elementary logic, it will help in clear thinking and make such errors as you committed above less likely.

Neil H:
You start with the inaccurate premise that the sole determinining factor of morality is whether or not the quality is enduring, so it is you who have committed the error of using a logically consistent argument to come to an inaccurate conclusion due to relying on a faulty premise.

If you want to claim that it was someone else that described the morality of an action as solely determined by its enduring status or quality (even though I disagree: it was you and only you who implied that it was only its enduring status or quality that mattered) then I will admit it was they, not you, who committed that error.

Neil H:
Do any such groups exist?

NonFederal NonFarmer
Yes. You can find them in every city, often in bars where "everybody knows their name"...

I though we were talking about people with an innate disposition towards alcoholism. Now we're talking about people who drink alcohol? So much for the distinction between disposition and action. And you've provided no evidence that anyone, whether "innate alcoholic" or "person who chooses to drink alcohol", would argue against the existence of school programs targeting a disposition to alcoholism the way same-sex attracted people would argue against school programs targeting their homosexual disposition. So please stop pretending that same-sex attraction and alcoholism are comparable.
4.23.2006 1:40am
212 (mail):
How to tell an honest argument from a false one: if the shoe were on the other foot, would they come out the same way?

Any hypo with Christians as the victims is so far from our experience that it's easy to proclaim a consistent Constitutional preference. (Like when Scalia supposedly said he would allow an elected body to ban all wine, even for sacramental uses.) So, how about something easier to imagine:

The orthodox Jewish kids of a school are far outnumbered, regularly ridiculed and taunted, and sometimes even battered because of their faith. The school decides to have some event to shine a critical light of this treatment, and might even hope to soften some of the stigma being imposed on part of their student body. (Say it's around Passover and there's even some of the unleavened bread.)

Does the Constitution of the United States require that some virulently anti-semetic members of the majority gentile student body must be enabled to undermine the school's effort by showing up on school property, during the anti-anti-semetism event wearing clothing that states something to the effect of: "Our School Embraces Those Who Killed Christ" and "Jews Will Burn In Hell"?

This isn't a perfect hypo, but anti-semitism is sufficiently out of style in polite circles to work as another foot on which to hang a shoe. It would be more accurate if the harrassed and battered minority were Christians and their harrassers were Heathens of some kind (Dark-Siders!), and there were some directly anti-Christian messege on the shirt. Maybe it could work as a few Mormons among a large and hostile "mainstream" community who assault them regularly. (Mormons are considered close enough to conventional Christianity to empathize, but distinct enough to imagine them being targeted somehow.)

If you think that the kid's shirt is constitutionally protected, but that the Anti-Semetic/Anti-Christian/Anti-Mormon one is not, the you fail the Shoe On The Other Foot test.

You have to honestly say that you'd either have judges constitutionally protect all of the shirts condemning the harrassed Jews/Christians/Mormons (necessarily disallowing any time/place/manner restriction that might preserve the school's ability to have an anti-harrassment messege about them), or allow the school administrator to decide in all of them.

Unless you be consistent between all the permutations, I can't really see a number of the arguments here as having much claim to intellectual honesty. (A third option, having a Judge ban all the condemnation, is a strawman that seems to be cropping up here, but doesn't have much to do with the case.)
4.23.2006 6:09am
David M. Nieporent (www):
212, let me just answer your question this way:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Yes, that includes tolerance.
4.23.2006 7:00am
Owen (mail):
SLS 1L,

No, it isn't "all but dead." People frequently decry "homosexuality" when referring to the behavior, the percieved libertine lifestyle, and not merely to everyone who has homosexual inclinations. Most opponents of homosexuality use this "hate the sin, love the sinner" rationale. The fact is, you're simply narrowing the scope of a word for your benefit in this argument.
4.23.2006 10:54am
Owen (mail):
jrose,

What I was positing was a different modification of Tinker - not as sweeping as yours - which would add only one exception to protected speech: speech which manifestly demeans a class of people simply because they belong to that class.

So if a person wears a t-shirt saying "eating meat is shameful," people will say that non-vegitarians are being slandered. Or let's go for something more popular -- a person wears an anti-fascist t-shirt, and now that's verboten because it maligns neo-Nazis. That's a standard, sure, but I don't think it's an intelligent one. Part of free speech is the ability to talk about certain distinct classes of people. The thick-skinned should have no more trouble dealing with condemnation of their "class" than their viewpoints. The distinction doesn't strike me as useful, and hurt feelings alone aren't a justification for abrogating the First Amendment.

But the real question is, how can a person now condemn homosexuality under your regime? Since homosexuals percieve themselves as a distinct class, any speech that isn't glowing and complementary will be taken as an attack and suppressed. The speech in question here could easily have been read as not condemning homosexuals per se, but it's at least on the fence and is not entitled to as much protection as pro-gay t-shirts. That's an awful result, in my view, under the First Amendment.
4.23.2006 11:05am
NonFederal NonFarmer (mail):
Neil H. wrote:
NonFederal NonFarmer:
Following your logic, we cannot offer any programs in public schools against alcoholism, because then we are attacking someone's enduring status or quality, right?

Please note that I am responding to someone else, who asserted certain things having to do with a person and their "enduring status or quality". Taking care to read all the comments, and to see to whom a poster is responding, will save time and help you to avoid committing errors.

Neil H replied:
If there was a group of people predisposed to alcoholism who viewed their alcoholism as a good thing and regarded attempts to supress and restrict it as unwelcome and unwanted, then you might have a point.

NonFederal NonFarmer:
The reducto is a common tool of elementary logic. Please consider learning elementary logic, it will help in clear thinking and make such errors as you committed above less likely.

Neil H:
You start with the inaccurate premise that the sole determinining factor of morality is whether or not the quality is enduring,

I did no such thing. Please try to read more carefully, and do not make up false positions &then ascribe them to people.

so it is you who have committed the error of using a logically consistent argument to come to an inaccurate conclusion due to relying on a faulty premise.

This is incorrect. Try reading the thread again.

Neil H:
If you want to claim that it was someone else that described the morality of an action as solely determined by its enduring status or quality (even though I disagree: it was you and only you who implied that it was only its enduring status or quality that mattered) then I will admit it was they, not you, who committed that error.

Again I suggest you read the thread, with care. Then you can avoid this silly error.

Neil H:
Do any such groups exist?

NonFederal NonFarmer
Yes. You can find them in every city, often in bars where "everybody knows their name"...

Neil H:
I though we were talking about people with an innate disposition towards alcoholism.

Yes.
Now we're talking about people who drink alcohol?

In my limited experience, people with a disposition towards alcoholism often, although not always, drink alcohol. Some such persons do not drink alcohol, and there are of course persons who drink alcohol that do not have a disposition towards alcoholism. Really, this is elementary. You should not waste your time and mine with such basic errors.

So much for the distinction between disposition and action.

Er, no, that is not the case, as I have explained.

And you've provided no evidence that anyone, whether "innate alcoholic" or "person who chooses to drink alcohol", would argue against the existence of school programs targeting a disposition to alcoholism the way same-sex attracted people would argue against school programs targeting their homosexual disposition.

Alcoholics often object to people telling them that they
are alcoholics and need help. Again, in my limited experience, they generally deny that they need help until they hit rock bottom. They do not want anyone to change them from the way they are, at least until the problem is extremely clear. So the category of people exists. However, by chasing this tangent you remove yourself further and further from any relevent comment...

So please stop pretending that same-sex attraction and alcoholism are comparable.

Do you know what an analogy is? Apparently not, so again I suggest learning some elementary logic. And by the way, I did not assert anything like this; you have engaged in a strawman argument, which is one of the classic logical fallacies. Please make a note of this, in order to avoid repeating the same error at a future time.
4.23.2006 8:37pm
Marcus1 (mail) (www):
GMUSL 2L

Verbal assault, as they are using it, seems to basically consist of saying something mean to another person. Sound ridiculous? Sure, if we're talking about the real world. In school, though, my feeling is that kids don't have a right, let alone a constitutional right, to say mean things to each other.

As to others, this is not the same as Tinker. The arm bands at issue there were not verbal assault. Sure, a person could take offense, as a person can take offense at anything, but essentially the Court said that the possibility of offense is not a sufficient reason to bar such speech. To say mere taking offense is a justification for barring speech would legally enshrine the "heckler's veto," and would be very likely to operate to target unpopular viewpoints merely because they are unpopular.

The court here is saying, though, that verbal assault is different, and need not be protected in school. Here the school is barring speech not because it is unpopular or because some person happened to call it offensive, but because it is beliggerent. Saying homosexuality is shameful is simply a mean comment. It's like a shirt that says "You wouldn't have gotten date raped if you were less of a slut," or "5'6 and 120 pounds means eat less, fatso" (I'm pretty sure that's skinny, but enter a different height and weight) or "Mental disability? God doesn't like you." I think these comments would all qualify as "verbal assault," not because they might offend somebody, but because they are mean comments directed at a person or groups of people. Such comments should not be allowed in school, and "verbal assault" is a good test.

So do you all think the above shirt ideas would be appropriate for school? Or is it simply ok to insult homosexuals?
4.23.2006 10:04pm
David M. Nieporent (www):
The court here is saying, though, that verbal assault is different, and need not be protected in school.


1) This whole "verbal assault" thing is something you made up. It's just "being offensive in ways Marcus doesn't like."

2) As per Tinker, the court doesn't get to say that, but even if it could, that's not what it said. It said that causing offense to its favored minorities was not protected. Not only does that violate Tinker, but it violates RAV.
4.23.2006 10:46pm
212 (mail):
David M. Nieporent, are you saying this is an AdLaw problem? Also who, exactly, is made to profess a faith? This is about administrator-enforced omissions, right? I wouldn't say preventing a constant declaration of anti-semitism/anti-Catholicism/anti-Mormonism at a religious tolerance event somehow equates to forced conversion to Judaism/Catholocism/Mormonism.

But hey, if you think the Constitution requires that kids be able to so constantly declare their anti-semitic/anti-Catholic/anti-Mormon beliefs... no, you still haven't convinced me that you actually believe it, except when it applies to gays, or maybe some other group you don't hold dear.
4.23.2006 11:50pm
Marcus1 (mail) (www):
David Nieporent,

1) I think you might be so good with your own word soup that you're fooling yourself. The attempt to equate "You're a despicable human being" with "I oppose the Vietnam war" is ridiculous. They are not remotely the same, in terms of what is appropriate commentary in school.

In fact, this is the exact standard used on this board, which seems to be attempting to replicate an acadmemic environment. Offensive viewpoints are seemingly accepted. Personal attacks are not. This is certainly a justifiable standard for schools. I'm sure EV could explain very eloquently why the policy of this board serves to further academic inquiry and growth.

Of course, EV would probably allow the statement "homosexuality is shameful" here, as falling short of a personal attack. In this setting I agree. In school, however, I think the school's decision is entirely justified, for a variety of the same reasons EV has his policy here and other reasons cited by the court.

2) Tinker shminker. I tend to agree with the Tinker outcome, and I agree that students have free speech rights to the extent that you can't supress Republican speech and allow Democratic speech. I think that's what Tinker was about. I don't think it was about the situation here.

I just don't think it matters that much, because I think we can be sure that if the Court reexamines this issue, their decision won't be based on a strict textual interpretation of the Tinker dicta.
4.24.2006 1:41am
David M. Nieporent (www):
In fact, this is the exact standard used on this board, which seems to be attempting to replicate an acadmemic environment.
"This board" is not bound by the First Amendment, and our esteemed EV is not a state actor (in his capacity as blogger, anyway).

Also, your statements repeatedly distort the facts of the case. The statements were not "personal." They were political. There was no "Johnny is a jerk, screw Johnny, I hate Johnny, Johnny is a degenerate, Johnny is a shameful human being" shirts. The shirts expressed a political viewpoint -- one which, contrary to 212's insinuations, I do not share -- about homosexuality.

I can tell the difference between "Jews suck" and "David Nieporent sucks." Can't you? Ironically, under Reinhardt's ruling, the latter would be acceptable and the former would not be. Indeed, although you select a rather mildly offensive opinion like "I oppose the War," as your example, "Soldiers are baby killers" or "Bush supporters are Nazis" or even "Christians are evil" would also be okay under Reinhardt's ruling. But who are you to decide that one is more offensive than the other? I'm not offended by "I oppose the war," but that doesn't mean someone else may not be. Offensiveness is inherently a subjective test.


And 212, I am saying, quite simply, that Reinhardt's opinion states explicitly that "tolerance, equality and democracy" are permissible orthodoxy and (what he characterizes as) "intolerance, bigotry or hatred" is impermissible heterodoxy.
4.24.2006 4:23am
jrose:
I don't think "Homosexuality is shameful" or "Jews suck" is a political viewpoint. In the present case, the political viewpoint is that the school shouldn't be supporting a Gay student group or the Day of Silence.

I think there is plenty of room for broad free speech rights in K-12 that allow for opposing political viewpoints while also giving schools the latitude to suppress statements which demean people simply because of who they are (including "Bush supporters are Nazis" and "Christians are evil"). A modest trimming of Tinker is in order.
4.24.2006 10:15am
Owen (mail):
jrose,

I don't think "Homosexuality is shameful" or "Jews suck" is a political viewpoint.

Those aren't the same statement. The "homosexuality is shameful" comment describes homosexuality, not necessarily homosexuals themselves, nor does it use vulgarity by saying that they "suck." A closer analogue would be "Judaism is shameful," which would undoubtedly be offensive, but unlike what you and Marcus want to believe, it still isn't a personal attack. An attack on a religion or a percieved deviant lifestyle is not the same as attacking individuals. With free speech we have equal right to praise and condemn -- if you shut off either avenue, the debate becomes decidedly one-sided. You might as well make the First Amendment inapplicable to the schools and be done with it.

Furthermore, condemning homosexuality is a political viewpoint whether you like it or not. The student here was protesting an action of the school itself, and expressing his view on a hot-buttom social issue. There is obviously a break in modern society between those who think homosexuality is morally-neutral (or positive) and those who believe that it is morally wrong.

The heart of free speech is that people don't have the right to a heckler's veto. Conservative Christians may well feel insulted by pro-gay propoganda in their school, and thus it may be more disruptive to the school environment than an anti-gay t-shirt. But you can't simply say that gays can hold a blasted parade down the halls, while conservative Christians have to stay hushed, because any contrary viewpoint will be viewed as attacking a group, which is forbidden. That's shutting down one viewpoint entirely on a major social issue, and it isn't based on anything related to education.
4.24.2006 10:35am
jrose:
Owen,

Under a slightly modified Tinker, Christians don't have to be hushed (e.g., "I will not accept what God has condemned" is OK) and speech is still mostly protected in K-12. Both sides of the debate play by the same rules. They can express their views (even offensive views) without statements like "Homosexuality is shameful" or "Christianity is shameful".
4.24.2006 11:11am
Owen (mail):
jrose,

It strikes me as a silly distinction. It's one thing to give schools latitude in now students are allowed to express themselves (i.e. no messages on t-shirts) but it's quite another to say that people can wear messages on t-shirts, but they can only approve but not condemn. If a student can wear a pro-gay t-shirt, a student should also be able to wear an anti-gay t-shirt.

The distinction you propose would only be workable, however, if it had some kind of rationale to it. You're perfectly willing to allow offensive views to be expressed -- so what's the reason for not permitting speech that condemns? What if instead of "homosexuality is shameful," the t-shirt said "sodomy is shameful?" (or far worse, "Fred Phelps is right?"). The latter expresses essentially the same message, and isn't going to be more or less disruptive. That being the case, there's no basis for the distinction. It's not enough to have a content-neutral standard, it must be a rational standard.

The best option here is simply to have a broader, content-neutral rule. A purposeless "no condemning groups or the concepts that define them" rule simply wouldn't comport with the First Amendment.
4.24.2006 12:50pm
jrose:
Owen,

In my view, distinguishing between offensive speech and speech which condemns people simply because of who they are is no less workable than any other relaxation of Tinker (except for an absolute line where schools have no restrictions).
4.24.2006 1:50pm
Owen (mail):
jrose,

But your distinction doesn't have a justification.

First of all, I'd add that a t-shirt saying "homosexuality is shameful" doesn't "condemn people simply because of who they are." A homosexual needn't actually practice homosexuality; they could be abstinate. The condemnation is against homosexuality, not individual homosexuals. Most conservative Christians hold this view, and more likely than not, this is view that way being expressed by the shirt.

Secondly, and more importantly, though, you haven't provided a basis for the standard. Any constitutional standard must have a relationship to a healthy educational environment. The Tinker standard is based on the potential of some speech to be disruptive, which is directly related to education. Since you admit that the fact that certain speech condemns a group doesn't necessarily speak to whether it is disruptive or offensive, the standard has no constitutional basis.

I'm afraid that I also don't see its logical basis, since you're willing to tolerate speech far more offensive than that which would be restricted. There's no relationship between the propriety of speech and whether or not it condemns a group of people. Under your view, a t-shirt saying "pedphiles are scum" would be forbidden, but a "pedophilia is a-ok" shirt would be allowed. That being the case, why draw the line there?
4.24.2006 2:32pm
jrose:
Condeming someone for who they are makes it hard for them to learn, even though the disruption standard is not met. Maybe this rationale could itself be the standard.

I think the behavior/identity distinction argument is weak for both "homosexuality is shameful" and "Christianity is shameful".
4.24.2006 2:49pm
Owen (mail):
jrose,

Condeming someone for who they are makes it hard for them to learn, even though the disruption standard is not met. Maybe this rationale could itself be the standard.

I don't see how that's different from simply being offended. It makes it hard for them to learn because of their feelings, and you've admitted that your standard would allow far more hurtful and offensive viewpoints to be expressed. You still aren't establishing a basis for this distinction.

We can debate what's "disruptive," but you're providing a standard there that is rational and related to education. Your standard doesn't share those attributes; it's mostly arbitrary.

I think the behavior/identity distinction argument is weak for both "homosexuality is shameful" and "Christianity is shameful".

That's conclusory, but I can see you're trying to act as if your view is self-evident via a comparison. I don't think it a works. A person who doesn't practice Christianity (i.e. hold Christian beliefs) isn't a Christian, but a person can be a homosexual and not act on those inclinations; the scenarios simply aren't the same.

A better comparison would be to have a t-shirt saying "alcoholism is shameful." Although persons who have alcohol problems but have learned to abstain may still consider themselves alcoholics, it would be obvious that the t-shirt wasn't referring to them. The word refers both to the addiction and the chronic use of alcohol, just as "homosexuality" refers both the inclination and homosexual activity.

On the other hand, if you're condemning Christianity, a believing Christian's beliefs are automatically condemned. Even then, though, you're not calling individual Christians shameful; instead you're attacking their beliefs system as shameful. It's a subtle but relevant difference; I may find a belief system shameful, but find its adherents to be good people. If an individual Christian couldn't tell the difference, that wouldn't be the critic's fault. In any case, it isn't the same scenario as we face here.
4.24.2006 3:52pm
jrose:
I see a difference in degree - and thus the effect - between speech which merely offends and that which demeans a person simply because of who they are.

In my opinion, sexual identity and behavior are inextricably linked in a manner similar to religious identity and belief. I realize you do not accept homosexuality as an identity anymore than you accept alcholism as an identity. The same argument (nudism was Scalia's analogy) in Lawrence.
4.24.2006 4:17pm
David M. Nieporent (www):
A modest trimming of Tinker is in order.
I can live with that. The problem is twofold:

1) That the Ninth Circuit doesn't get to "trim" Supreme Court cases.
2) That the Ninth Circuit's "trimming" was extremely selective. Not only did it say "Homosexuality good" was protected and "Homosexuality bad" was unprotected -- in other words, not viewpoint neutral -- but it also said that "Homosexuality bad" was unprotected but "White people bad" was protected. That is, it isn't derogatory speech being banned, nor is it derogatory speech against groups defined by inherent characteristics. It's only derogatory speech against unpopular groups defined by inherent characteristics.
4.24.2006 4:55pm
Marcus1 (mail) (www):
Owen,

>I don't see how that's different from simply being offended.<

You don't see the value in requiring kids not to be rude to each other? If one kid continues to say nasty things to another in earshot of the teacher, does the teacher have an obligation, as a state actor, not to even discourage such behavior, because it might chill the student's viewpoint of saying nasty things to other kids?

There are many benefits to having kids be nice to each other at school. I don't think a school should be constitutionally prohibited from saying "If you don't have anything nice to say, don't say anything at all." Primarily, it teaches kids how to communicate in a respectful and non-inflammatory manner. That's important. I'm sorry, Fred Phelps may have a Constitutionally protected viewpoint, but somebody somewhere along the line should have taught him how to express it other than with signs saying "God hates fags" at gays' funerals. If somebody had taught him how to do that, it would have been a wonderful thing.

The reason for the distinction, moreover, is that you are balancing competing interests. On the one hand, you want to allow people to express their substantive opinions. If a kid wants to say that he believes in a literal interpretation of the Bible, you want to allow him to say that. But at the same time, you want him to find a way to do it that doesn't create a hostile environment for other kids. Now, sure, he may offend somebody just by saying that he believes in the Bible. To silence that kind of comment, though, is extremely problematic. That prevents him from expressing his opinion at all. Saying on the other hand, that the kid just can't say nasty things about other people like calling them shameful, accomplishes a fair amount, without infringing on much. I think that's what makes it a good distinction.

Incidentally, saying homosexuality is shameful does amount to a verbal assault. Consider the meaning of "shameful." Shameful is a statement about how individuals should feel about themselves. It is not like saying homosexuality is wrong. It's like saying "Christianity is indicative of stupidity." Literally, you're commenting on Christianity, but of course, the real target is the person that you're calling stupid/shameful. You can't pretend that saying "homosexuality is shameful" is not an attack on homosexuals. As much as anything, it is.
4.24.2006 5:49pm
Owen (mail):
Marcus,

You don't see the value in requiring kids not to be rude to each other?

Sure I do. I didn't find the t-shirt to be rude. Moreover, I've been criticizing a standard that isn't based on rudeness, but on the type of criticism. The standard would allow "pedophilia is swell" but disallow "pedophilia is shameful." It would allow "Fred Phelps is great" and disallow "scientology is evil." It's silly in its application.

[S]aying homosexuality is shameful does amount to a verbal assault.

Rather hyperbolic, don't you think? When I think "verbal assault," I think extreme, vile, hateful rhetoric directly squarely at me. If somebody said "people named owen should be ashamed" I wouldn't feel verbally assaulted. Let's be a little more thick-skinned here. Not every generalized insult rises to the level of a verbal assault.

Consider the meaning of "shameful." Shameful is a statement about how individuals should feel about themselves. It is not like saying homosexuality is wrong.

Yes it is. If I feel something is wrong, then surely that behavior is shameful. People should feel ashamed when they do wrong. Objectively, the comment says nothing more than homosexual behavior is wrong.

It's like saying "Christianity is indicative of stupidity."

No, that's nothing like the t-shirt in question. The t-shirt expressed a moral view on homosexuality. It didn't say that being X is an indicator of Y. Let's stick with the example -- X is shameful.

Literally, you're commenting on Christianity, but of course, the real target is the person that you're calling stupid/shameful.

That's a logical leap, from criticizing homosexual activity to condemning homosexuals themselves. It's a leap you're not entitled to make, not when the Constitution is involved.
4.24.2006 7:45pm
Owen (mail):
jrose,

I see a difference in degree - and thus the effect - between speech which merely offends and that which demeans a person simply because of who they are.

That's a vague standard that shouldn't pass Constitutional muster. When does something merely "offend," and when does it "demean a person because of who they are?" What is "identity?" I've noticed that you've glossed over my substantive criticisms of this view, including the absurd results it would produce (is criticism of pedophilia now forbidden?). You've also ignored this observation of mine, which applies directly to the religion/homosexuality analogy you're using:

"[I]f you're condemning Christianity, a believing Christian's beliefs are automatically condemned. Even then, though, you're not calling individual Christians shameful; instead you're attacking their belief system as shameful. It's a subtle but relevant difference; I may find a belief system shameful, but find its adherents to be good people. If an individual Christian couldn't tell the difference, that wouldn't be the critic's fault."

In my opinion, sexual identity and behavior are inextricably linked in a manner similar to religious identity and belief. I realize you do not accept homosexuality as an identity anymore than you accept alcholism as an identity. The same argument (nudism was Scalia's analogy) in Lawrence.

Do you realize how this sounds? The First Amendment should never turn on your "opinion." You believe something about the nature of homosexuality, so I don't have the right to criticize homosexuality openly. You'll excuse me if it sounds like you want your opinions to control my freedom.
4.24.2006 7:52pm
jrose:
Owen,

Pedophilia is distinguished because it is a crime.

I am not persuaded by your argument that the statement "Christianity is shameful" does not demean Christians because of who they are.

This First Amendment issue (in which your freedom is not at stake) must turn on an opinion - one way or the other - as to whether "Xity is shameful" demeans people simply because they are X.
4.24.2006 9:34pm
Owen (mail):
jrose,

Pedophilia is distinguished because it is a crime.

So the First Amendment lets us criticize things that are crimes, but not things that are not? You seem to be making up your standard as you go along, and it shows (furthermore, it should be noted that the only reason homosexuality isn't a crime is the recent, erroneous decision in Lawrence).

I am not persuaded by your argument that the statement "Christianity is shameful" does not demean Christians because of who they are.

Well, since you don't have an argument in response, I'll assume this lack of pesuasion is based on nothing.

This First Amendment issue (in which your freedom is not at stake) must turn on an opinion - one way or the other - as to whether "Xity is shameful" demeans people simply because they are X.

That's why your standard is awful. It has to hinge on your opinions.
4.25.2006 6:00pm