"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.