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"Hate Speech":

That's how Judge Gould, concurring in the denial of rehearing en banc in Harper v. Poway Unified School Dist., describes a T-shirt that reads "Be Ashamed, Our School Embraced What God Has Condemned" and "Homosexuality Is Shameful."

I would surely not endorse not endorse the sentiments on the T-shirt; and such sentiments may indeed sometimes flow from "hate," whether of the "hate the sin, love the sinner" variety or of the "hate the sinner just as much as the sin" flavor. Yet if the label is apt for a T-shirt in a high school, it would apply pretty much as well to these sentiments everywhere. (The speech may be easier for offended people to avoid — or to deal with — in other contexts, but if it's "hate speech" it would still be "hate[ful]" even in those contexts.) And it could easily apply to any criticisms of homosexuality, whether or not they use the term "shameful," so long as they (in Judge Gould's words) "misusing biblical text to hold gay students to scorn" or presumably use other arguments for why homosexuality is improper.

This is all the more evidence, it seems to me, to reject the often-urged "hate speech" exception to the First Amendment, at least if one values debate about political and religious matters rather than coercive imposition of the government's preferred views. Judge Gould's opinion at least offers hope that he would limit the exception to speech in government-run K-12 schools. The calls for a "hate speech" First Amendment exception have generally not been so limited.

Judge O'Scannlain, joined by Judges Kleinfeld, Tallman, Bybee, and Bea, dissent from the denial of rehearing en banc, largely endorsing Judge Kozinski's dissent from the panel opinion. They are also kind enough to cite my post on the subject, which generally takes a view very much closer to the dissent's than to the majority's.

Many thanks to Charles Morse and Kimberly Kralowec for the pointer.

Ex-Fed (mail) (www):
Reinhardt is no shrinking violet, but that's an awfully snide and superior tone to his concurrence, even to him. And it completely ignores the key point that the panel opinion endorses viewpoint discrimination among instances of hate speech.

I wonder: how is minority status determined? Nationally? Districtwide? School by school? Grade by grade? Class by class? Under the panel's censorious adventurism, may an African-American student be permitted to wear a "I hate Whitey" T-shirt at a majority-white school but prohibited at a majority-black school? Or is this "minority" in the sense of "traditionally disparaged groups focused upon by academics?"

Ridiculous. And, ultimately, very unlikely to deveop to the the benefit of minority groups, when the worm turns, as it always does.
7.31.2006 6:01pm
Donald Kahn (mail):
By my lights, an important part of schooling is the teaching of civility. This means no bullying, and no gratuitous insults. This is certainly the policy of private schools, and public schoolers should have the benefit of equal instruction.

At least that is what I want for my children.
7.31.2006 6:17pm
Donald Kahn (mail):
And I should have added, instruction in civility is a pedogogic, and not an administrative, matter. Therefore no constitutional question arises.
7.31.2006 6:21pm
John Armstrong (mail):
I tend to skew very liberal on speech issues, but I really have no problem with this ban, though not on the hate-speech count. I think the shirt is needlessly inflammatory, and inappropriate for a K-12 school setting. The same goes for (proposed) bans on the "Big Johnson" shirts that were so lamentably popular when I was in these schools: they're misogynistic, yes, but more to the point they're detrimental to a desired civil discourse in the school.
7.31.2006 6:30pm
Jim Rhoads (mail):
If considered without context, I believe most would consider the message on the T Shirt impolite, if not uncivil.

But the context in this case (not noted in the majority RHEB opinion) was what most would consider a "pro gay" event at the school which the wearer attended a few days before he wore it. The T Shirt message, considered as a forceful response, seems to me to be within the ambit of robust debate.

One way to deal with it would be to allow moderated discussion in the homeroom period, or other appropriate time, with a view toward influencing the wearer to consider the effect on others' feelings. Perhaps that educational point would have a moderating effect on future behavior.

The constitutional question only arises if robust speech is banned. Why take that step?

I suspect this will be reversed by SCOTUS. Another rap on Reinhart's knuckles.
7.31.2006 6:39pm
PersonFromPorlock:

I tend to skew very liberal on speech issues, but I really have no problem with this ban...

Why the "but?"
7.31.2006 7:04pm
Justin (mail):
Porlock, regardless of your own preconceptions, I assume by "very liberal" he meant the small l version of the word.

But maybe some people like to have it both ways - the ACLU is a liberal isntitution because they are absolutist on government censoring speech, and liberals are the ones who want the government to censor speech. Sure.
7.31.2006 7:14pm
A.S.:
Why the "but?"


Mmmmm, maybe because this ban, and the 9th circuit opinion upholding it, are basically fascist in nature?
7.31.2006 7:14pm
John Armstrong (mail):
PersonFromPorlock: "but" because an absolute liberal (as I understand the term) on speech issues would strike down all bans on speech he could. I advocate the permissability of a wide variety of objectionable speeches, but this is a case where I believe the ban is useful and good.

On the flip side, I would heartily oppose this ban on a college campus. The audience there has reached nominal adulthood and is more able to choose whether or not to listen. Futher, almost nobody is forced to be exposed to the speaker for a significant period of time, so the speech is far less disruptive.
7.31.2006 7:16pm
DClawer:
DK: As always with the 1st Am., while the shirt banned may have been in poor taste, and the principal may have exercised very good judgment, it's the ad hoc decision based on subjective standards that's the problem.

JA: I'm also pretty left on speech issues, but I agree with you in the main. The solution to me seems to be a content-neutral dress code (e.g., no clothing may display any writing or pictures--fine with me if this includes clothing labels, manufacturers will make plenty of clothes that fit the bill). Seems like a legit time-place-manner restriction if a decent record supports the conclusion that clothing can be disruptive to the educational process: we're not stopping you from publicly hating on gays, or supporting Israel, you just can't wear clothes that do it, because we as administrators have decided that "speech clothes" are a distraction.
But as always, the greater power doesn't include the lesser--the ability to ban all communicative clothing doesn't mean I can ban only the clothing on one side of an issue. There must be cases on this--I'm remembering one about a girl with a gang tatoo?--but I'm too busy to look this up right now...Anyone know off the top of their head?

(Here's an interesting question: Can a kid wear a T-shirt that reads "the Bible is a lie"? What about "Evolution is a lie?" I can't wait until my kids are old enough to go to school.).
7.31.2006 7:19pm
John Armstrong (mail):
Justin: you are correct. I use the term "liberal" in the first three senses in the O.E.D.

1. open to new behavior or opinions and willing to discard traditional values
2. favorable to or respectful of individual rights and freedoms
3. (in a political context) favoring maximum individual liberty in political and social reform
7.31.2006 7:19pm
John Armstrong (mail):
DClawer: Of course you're right that the ban must be completely content-neutral. I would also support a ban on a shirt reading "Homophobia is a Disease". The same is true for your examples of clothing speaking against Christianity or evolution.
7.31.2006 7:23pm
JunkYardLawDog (mail):
Does nobody have any problem with Gould ruling what is a "proper" interpretation of the bible and then allowing free speech restrictions of speech which does not "properly interpret the bible". Weren't there a bunch of people here opining recently that a veto of stem cell research legislation violated the establishment clause if the veto were motivated by the personal religious beliefs of the President?? Yet here we have a federal judge ruling what speech can be censored on the basis of what that federal judge says is the "proper use" of the bible and nobody is offended???

I would overrule the opinion of Gould on several reasons one of which would be his obvious imposition of his own personal interpretation of the bible as that which is the only proper use of the bible as regards speech that purports to rely upon the bible. Now that seems to me to be a clear cut establishment of a judicial religion that says flat out in its ruling what is and what is NOT the proper religious dogma and biblical interpretations of the Bible, and then rules that biblical dogma and interpretations which vary from the officially established by judge Gould biblical dogma and interpretations are NOT protected by the first amendment. His statement implies rather strongly that biblical dogma and interpretations that match the official and true one's which Judge Gould has established for all of us might well be entitled to first amendment protection.

I think the hostility to the free exercise of religion intertwined with the free speech provisions of the first amendment is blindingly apparent in Judge Gould's opinion.

If you ask me the only hate speech is contained in Judge Gould's opinion and it reflects his hate for biblical doctrine and interpretation that varies from his own personal interpretations which he has ruled are the law of the land.

Says the "Dog"
7.31.2006 7:30pm
TomD:
It's a good thing we didn't ask you, "Dog," since Gould wrote a one-paragraph concurrence respecting denial of en banc, and not the opinion in the case. I would applaud you for your brilliant parody of a right-wing knee-jerk reaction to anything coming out of the Ninth Circuit, if I didn't know better.
7.31.2006 7:57pm
RMCACE (mail):
This is one of the unusual situations where the objectionable speech actually endorses the current laws of the land.The shirt could have said "Gays don't deserve to marry," "Marriage is between one man and one woman," or just "Leviticus." Maybe the shirt could have text from DOMA or the proposed marriage amendment. This may or may not be hate speech, but it is a fairly accurate statement of the current law.

So is the law hateful, the speech hateful, or the combination of the two? I find it hard to hold that speech is hateful while it is an accurate statement of the current law. Can anyone think of another statement that might be hateful while an accurate statement of the law? I am thinking maybe there is more stuff pre-Lawrence v. Texas or hate speech during WWII (Korematsu).
7.31.2006 8:06pm
Master Shake:

This is one of the unusual situations where the objectionable speech actually endorses the current laws of the land.
Huh?? The law of the land is that "God has condemned homosexuality" and "homosexuality is shameful"? What are you talking about?
7.31.2006 8:10pm
Toby:
I have a question that I've never been in the correct circle to ask....

Is the Darwin Fish, properly speaking, a hate crime? It has no purpose except to taunt members of a particular religion, by apropriating one of their oldest and most cherished symbols, one adopted during a time of persecution....

You may discuss among yuorselves..
7.31.2006 8:17pm
RMCACE (mail):

The law of the land is that "God has condemned homosexuality" and "homosexuality is shameful"? What are you talking about?


There is no other explanation for the current law regarding marriage. Homosexuality is afforded a far lesser status in the eyes of the law, i.e. the right to marriage. There is no rational explanation for this other than that homosexuality is viewed as shameful. They are lesser families and are afforded lesser rights.
7.31.2006 8:24pm
AppSocRes (mail):
So it's okay for high schools to promote a life style that menaces individual and public health (Currently, just about the only people who get HIV/AIDS are sexually active homosexuals, IVDUs, and their sex partners. There is also now an extensive medical literature on the really wierd STDs with which homosexuals idiosyncratically present.) Yet it is outside the bounds of reasonable discourse for individual HS students to present an opposing message. Only a "liberal" could embrace logic like this.
7.31.2006 9:16pm
Rhymes With Right (mail) (www):
JunkYardLawDog raises the very issue that hit me between the eyes about the Gould opinion. Under his standard, it is up to government officials to determine the proper use (and presumably meaning) of a religious text.

I wonder -- would this mean that "Thou shalt not commit adultery" is banned because it might hurt the self-esteem of children who engage in sex outside of marriage or are the children of adulterers? Is "Thou shalt not kill" acceptable on a shirt opposing capital punishment or war, but not on one opposing abortion because of the deleterious impact on the psyches of girls who aborted?

And what of non-Christian texts? Would the wearing of a shirt citing the rabbbinic texts stating that Mary was a prostitute be banned based upon the reaction of Catholic students? What about Koranic texts calling Jews pigs and monkeys?
7.31.2006 9:16pm
Ex-Fed (mail) (www):
Toby:

"Is the Darwin Fish, properly speaking, a hate crime? It has no purpose except to taunt members of a particular religion, by apropriating one of their oldest and most cherished symbols, one adopted during a time of persecution...."

Certainly not under the panel opinion in this case, which made it quite clear that only communications offensive to "minority" groups (whatever that means) may be banned.
7.31.2006 9:35pm
Rhymes With Right (mail) (www):
I guess there are a couple of other points that have nagged at me about the decision. For all of Reinhold's concern about the damage to the psyches of young people, does he consider the damage to the psyche of students who are told their religious beliefs are wrong, bad, and subject to adverse sanctions imposed by government agents if expressed at school?

Also, I believe that Reinhold and company torture the "right to be left alone" language of Tinker. My understanding of that is that it was intended to limit attacks on individual students, not amorphous groups. Indeed, to analogize from libel law, because of the general nature of the comments they should be held to not be making a reference to any particular member of the class referred to and therefore not actionable by individuals or the government.
7.31.2006 9:40pm
John Herbison (mail):
Here's hoping certiorari is sought and granted.
7.31.2006 10:24pm
JunkYardLawDog (mail):
TomD,

Please remove your own knee from your mouth before replying in the future. I'm afraid you entirely missed the point of my post. At least some people got it.

Says the "Dog"
8.1.2006 12:07am
Ship Erect (mail) (www):
Hey AppSocRes, which STDs affect only gays, and which high schools teach students how to be gay? Spreading disinformation is even worse than tortured logic.
8.1.2006 2:43am
TomD:
No, "Dog," you obviously don't know anything about the law, or didn't actually click on the link to read the Gould concurrence, or both.

You say "here we have a federal judge ruling what speech can be censored on the basis of what that federal judge says is the "proper use" of the bible." No, it's a paragraph concurrence from a denial of en banc. It is not a "ruling." It has no precedential weight.

You say "I would overrule the opinion of Gould on several reasons one of which would be his obvious imposition of his own personal interpretation of the bible as that which is the only proper use of the bible as regards speech that purports to rely upon the bible." Could you explain to me the mechanism for "overruling" a concurrence from the denial of en banc?

You say "His statement implies rather strongly that biblical dogma and interpretations that match the official and true one's which Judge Gould has established for all of us might well be entitled to first amendment protection." Again, explain to me how a one-paragraph concurrence in the denial of en banc, that cites no authority, and has no value, represents "dogma . . . established for all of us"? I must have missed the part of the Constitution that gives such weight to procedural concurrences.

You say "I think the hostility to the free exercise of religion intertwined with the free speech provisions of the first amendment is blindingly apparent in Judge Gould's opinion . . . which he has ruled are the law of the land." I think it's obvious that you didn't read it, since you call it an "opinion," which it is not, and that he made that opinion the "law of the land," which he did not. He was not a judge on the panel that decided the case, nor did his concurrence make any law.

I stand by my original observation. I'm sorry that you're embarassed that you were called out on it.

Incidentally, didn't EV spend a few posts a month or so ago, explaining why it's childish to end all of your posts with an italicized "Says the Dog"? Interesting that you still do it.
8.1.2006 10:15am
JunkYardLawDog (mail):
TomD,

Thanks for the analysis which in most respects is quite correct and fully demonstrates at the same time your failure to understand my post in the slightest. You've identified lots of trees there. You have them sorted by genus and phyla and correctly referred to their latin names. Sadly, you failed to recognize the forest in front of you. This is the analogy that applies to comments that so woefully and completely miss and fail to recognize or address in the slightest the point of my post.

Says the "Dog"
8.1.2006 12:38pm
JunkYardLawDog (mail):
TomD,

Oh and thanks for making it clear that Judge Gould's opinion is not his opinion. Such precision and clarity in your thinking. Its really astounding to watch.

Says the "Dog"
8.1.2006 12:40pm
JunkYardLawDog (mail):
TomD

Finally, regarding my tag line at the end of my messages. If it bothers you and you think it a violation of some rule why don't you run to the nearest hall monitor and report it. Maybe, if you are lucky they will give you a hall monitor badge to wear. Then when you call people childish you will have the imprimitur of an official hall monitor badge to support your condemnations.

I know I'd certainly vote for you to get a hall monitor badge.

Says the "Dog"
8.1.2006 12:50pm
TomD:
I must have hit close to the mark to get you all riled up like that. No, I think everyone sees what forest you're in. We all know that you are reflexively ultra-conservative and despise all those God-haters on the Ninth Circuit. Particularly since you seem to believe that you are the true keeper of the Bible's meaning, since you are so positive that Gould is wrong and that the kid's shirt contained revealed wisdom wrongfully suppressed.

The fact that you took great umbrage at a one-paragraph concurrence that you clearly did not read, railing against it assuming that it was the opinion of the court, is verification of the knee-jerk attitude displayed in everything you post here. I'm sorry that you are embarassed that someone called you out on it. But this site is well known as one that analyzes legal issues in a thoughtful manner, which is the opposite of what you do. Here's a tip: try reading something before you attack it. And when you get caught doing it, just own up to it.

Oh, and as to the tag line, just because it isn't against the rules, doesn't mean that it's not lame, childish, repetitive, and utterly unclever. I'm not sure if you think it adds gravitas to your posts, but it really doesn't.
8.1.2006 1:48pm
David M. Nieporent (www):
Okay, enough picking on Dog's ignorance. Regardless of the fact that Dog flunked CivPro, doesn't he have a point?

Isn't it rather unseemly for a federal judge to discuss the correct interpretation of the bible, even in pure dicta in an irrelevant concurrence?

What is Gould's basis for claiming that the appellant is "misusing" the Bible? That seems to be a core theological question, and entirely outside the proper realm of a judge's official duties (though he is of course free to hold such an opinion in his personal life.)
8.1.2006 2:03pm
TomD:
If it had been a ruling that incorrect interpretations of religious text do not have First Amendment protection, along with fighting words and obscenity, then yes, it would be completely improper, unconstitutional, and wrong.

Of course, that's not what he's saying. It seems pretty clear that Gould is not using the term "misused" in the sense that the kid has "misinterpreted" bible text. Context indicates that the text is "misused" in that it is pasted on a t-shirt for the purpose of "hold[ing] gay students to scorn." That is disruptive, and Gould believes that a school can regulate speech that is disruptive.

I'm sure others will disagree. But given that Gould cites no authority, and is merely explaining, in a very off-hand manner, his vote to not rehear the case en banc, it's hard to get all worked up over the concurrence.
8.1.2006 2:25pm
JerryW (mail):
"Ship Erect: Hey AppSocRes, which STDs affect only gays?"

Although it has very little to do with the legal discussions here, in the United States HIV is not sexually transmitted through sexual activity in a heterosexual relationship. In 99+% of cases males who are HIV positive acquired their condition from either homosexual behavior or through IVDU. That is not true in females or in males in Africa.
8.1.2006 4:55pm
Angela (mail):
When Gould outlaws "misusing biblical text to hold gay students to scorn" is he interpreting scripture? I can't believe a 9th Circuit judge is making a religious determination like this. Whatever you think of homosexuality and the bible, he's tipped his hand.
8.1.2006 5:52pm
JunkYardLawDog (mail):
TomD


Particularly since you seem to believe that you are the true keeper of the Bible's meaning, since you are so positive that Gould is wrong and that the kid's shirt contained revealed wisdom wrongfully suppressed.


Here you are either deliberately telling a lie or again exposing your knee jerk ignorance of so many things biblical and people. I have never said or implied even indirectly any of the above. If you'd care to provide a reference to the appropriate quote of mine in this or any other post I've ever made in my entire life, I will be happy to recant. If you can't provide any such backup then in the future express your anti-christian anti-religious bigotry as your own personal lame opinion. Your own special kind of "hate speech" as it were.

What offends you the most people of faith or people who think they have a first amendment right to express disapproval of the pro-homosexual agenda?

Says the "Dog"
8.1.2006 6:01pm
JunkYardLawDog (mail):
TomD


But given that Gould cites no authority, and is merely explaining, in a very off-hand manner, his vote to not rehear the case en banc, it's hard to get all worked up over the concurrence.


So if Gould had said instead in a very off-hand manner about his vote to not rehear the case en banc that "ignorant orthodox jews should keep to counting their money and leave homosexuals alone" that this also would be hard to get all worked up over? Afterall the comment would be just some irrelvant dicta in a meaningless concurrence, Right?

Says the "Dog"
8.1.2006 6:08pm
elmerhewo (mail):
I disapprove of what you say, but I will defend to the death your right to say it. Voltaire
Guess they don't teach this one anymore.
8.1.2006 6:27pm
Eugene Volokh (www):
JunkYardLawDog: A little lighter on the froth around the mouth, please.
8.1.2006 7:35pm
TomD:
JYD is still smarting because someone called him out on his constant failure to think instead of blindly reacting, this time by failing to read an opinion before he started frothing about its "obvious" incorrectness and obvious hatred for God and presumably, Mom and Apple Pie too.

And, of course, it's no surprise that again, he ignores the substance of my later post, which quite plausibly explains that Gould's concurrence cannot be reasonably read as basing First Amendment protections on a "correct" biblical interpretation. But hey it's fun to build strawmen.
8.1.2006 10:48pm
Rhymes With Right (mail) (www):
Hate speech, whether in the form of a burning cross, or in
the form of a call for genocide, or in the form of a tee shirt
misusing biblical text to hold gay students to scorn, need not
under Supreme Court decisions be given the full protection of
the First Amendment in the context of the school environment...


So, Tom, would a tee shirt correctly using biblical text to hold gay students up to scorn be acceptable under the theory espoused by Gould? Who is to determine what constitutes misuse of the text and what constitutes the correct use of the text -- the religious believer engaging in speech putatively protected by the First Amendment, or a government official?
8.2.2006 8:39pm
TomD:
The student's allowed to believe whatever he wants. But schools may censor student speech to maintain order and disruption. So, no, it doesn't matter whether it is "correct" or not from a theological viewpoint. And, of course, Gould didn't say that the test was whether it was a correct quote or not, just whether the language was used to insult or cause injury to others.

If some Asratu student (generally thought of as a white supremacist religion) included a fully accurate statement of his belief on a t-shirt that was hateful towards black students, or a Muslim student had a verbatim Koran quote that disparaged Jews or other "infidels", would you be just peachy with that?
8.3.2006 11:12am
TomD:
second sentence should say "maintain order and avoid disruption"
8.3.2006 11:13am
Rhymes With Right (mail) (www):
So what you are saying is that the exact words of the opinion do not mean what the exact words of the opinion say.

Does it really come down to what the meaning of the word "is" is?

And you ignore the point here -- Gould's standard is the misuse of the text -- which requires that a state actor determine the correct use of Scripture.
8.3.2006 8:54pm
Rhymes With Right (mail) (www):
Also, speaking as an actual, real live high school teacher, I would argue that Harper's shirt is no more disruptive than the Day of Silence shirt and surrounding activities.
8.3.2006 8:58pm
TomD:
No, you are replacing the word "misuse" with "misinterpret," and quite without foundation. Read the opinion. The word "misuse" is clearly tied with the concept of "placing it on a tshirt to hold gay students to scorn." The misuse is not the interpretation of the biblical passages. As in my examples above, you can quote a religious text verbatim, and it would be a misuse if you displayed it to insult other students.

The "Day of Silence" shirts didn't say "christian fundamentalists are shameful" or "christianity is shameful" so your comparison isnt' really apt. Despite what many fundamentalists think, the mere existence of gay people, and certain people's lack of hatred for them, is not the equivalent of an assault on Christian people.
8.4.2006 9:44am
Rhymes With Right (mail) (www):
Actually, I am not replacing it at all.

Since when does government get to decide on the proper use of scripture?

Indeed, a Christian student wearng such a shirt is arguably fulfilling a religious duty.

2 Tim 3:16 All scripture is inspired by God and is useful for teaching, for refutation, for correction, and for training in righteousness.

The student is, in fact, engaging in an act of refutation of the pro-gay position, of correction of what he views as the erors of the school system in sponsoring/permitting the Day of Silence, and attempting to train/educate his fellow students in what he believes to be righteous living. Gould therefore seeks to impose his own interpretation of the proper use of scripture on young Mr. Harper. So while, by the direct words of Scripture, the student was properly using Scripture, Judge Gould would set teh Judicial Branch up as the arbiter of proper use and interpretation of Scripture.
8.4.2006 10:43pm