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.

Comments
Pro-Taliban Speech Constitutionally Protected, Criticisms of Homosexuality Unprotected:

Here's an excerpt from Judge Reinhardt's short dissent in Lavine v. Blaine School Dist. (Jan. 2002); Judge Reinhardt was taking the view that a school improperly disciplined a student for writing a poem with a violent theme:

I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) ("[T]he First Amendment [is] the guardian of our democracy.") First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation's officials or policies for any reason whatsoever.

Except of course, according to Judge Reinhardt's more recent Harper v. Poway Unified School Dist., when the speaker is saying that homosexuality is shameful, or displaying a Confederate flag, or making any other "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" (even if the remarks deal with important public debates, aren't personally addressed to any particular person, are in response to expressions of contrary views, and haven't been found to create a substantial risk of disruption).

The First Amendment, you see, doesn't protect those viewpoints in public high schools. It protects Taliban sympathizers (of course except when they criticize minority religions, or minority sexual orientations). It protects "any other person who disapproves of one or more of our nation's . . . policies for any reason whatsoever." But it doesn't protect condemnation of homosexuality -- an important argument for those who want to explain why they disapprove of, say, the nation's policy on constitutional protection for same-sex sexual relations, or the state's policy on employment discrimination based on sexual orientation. It doesn't protect the Confederate flag, presumably because it's often seen as an expression of disapproval for the nation's civil rights policies. (The Confederate flag can also be seen as having other meanings, but I take it that the offensive meaning, at least today, relates to some degree of disapproval of civil rights policies, which is on very rare occasions actual endorsement of slavery and much more commonly a generalized defense of Southern white culture, including its sometimes racist strains.)

And presumably it doesn't protect speech that criticizes fundamentalist Islam, since that is of course a minority religion. The Taliban sympathizers can speak and criticize Americans and presumably Christians (but not Jews or gays) all they want; but Taliban opponents may not. That's because in the Ninth Circuit there's now a Judge-Reinhardt-created viewpoint-based First Amendment exception for speech that minority high school students find is "derogatory and injurious" towards their "race, religion, and sexual orientation."

I'll say it again: Under existing First Amendment precedents, there is a viewpoint-neutral First Amendment exception for disruptive speech in schools. 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, and thus might be restricted.

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." And there are quite plausible arguments that the government as K-12 educator should have still broader authority over speech in public schools (though this too would be a viewpoint-neutral First Amendment exception). What bothers me is the Ninth Circuit's newly minted viewpoint-based First Amendment exception, which singles out certain ideas for lack of constitutional protection.

Comments
"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.

Comments
4 Votes 4 Bong Hits 4 Jesus:

SCOTUSblog reports. (Recall that it takes four Justices' votes to agree to hear a case.)

Comments
Harper v. Poway Unified School District and the Supreme Court:

The Court just agreed to hear one Ninth Circuit high school student free speech case, Morse v. Frederick ("Bong Hits 4 Jesus"). What does this mean for the other Ninth Circuit high school student free speech case, Harper v. Poway Unified School Dist. ("Homosexuality is Shameful")?

I think Harper will likely be held until the Court decides Morse, and if there's some uncertainty about whether the Harper Ninth Circuit decision is right given the Court's ruling in Morse, the Court will then "GVR" -- Grant, Vacate, and Remand for reconsideration in light of the new precedent. Last Monday, the Court denied "[t]he motion of petitioners to expedite consideration of the petition for a writ of certiorari," but I suspect this just reflects the Court's decision to actually slow down consideration of the petition until after Morse is decided.

Comments
High School Anti-Homosexuality T-Shirt Case Vacated as Moot:

Thanks to Constitutionally Correct and How Appealing for the pointer. This means that the Ninth Circuit opinion upholding the school's prohibition of the T-shirt loses its precedential value.

Comments
Supreme Court Vacates Reinhardt Anti-Homosexual T-Shirt Decision: Back on April 20, 2006, Eugene authored a post that began,
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."
  But as so often happens with decisions by Judge Reinhardt, Reinhardt's word was not the last. Today the Supreme Court vacated Reinhardt's in an order that states in relevant part:
HARPER, TYLER C., ET AL. V. POWAY SCHOOL DISTRICT, ET AL.

. . . The district court . . . has now entered final judgment dismissing petitioner’s claims for injunctive relief as moot [because Harper graduated from the school]. We have previously dismissed interlocutory appeals from the denials of motions for temporary injunctions once final judgment has been entered. See Pacific Telephone & Telegraph Co. v. Kuykendall, 265 U. S. 196, 205–206 (1924); Shaffer v. Carter, 252 U. S. 37, 44 (1920). In this case, vacatur of the prior judgment is also appropriate to "'clea[r] the path for future relitigation of the issues between the parties and [to] eliminat[e] a judgment, review of which was prevented through happenstance.' " Anderson v. Green, 513 U. S. 557, 560 (1995) (per curiam) (quoting United States v. Munsingwear, Inc., 340 U. S. 36, 40 (1950)) (alterations in original). The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss the appeal as moot. See United States v. Munsingwear, Inc., supra. Reported below: 445 F. 3d 1166.

Justice Breyer dissents.
  What does it mean? It means that Judge Reinhardt's opinion has been "taken off the books," and the Ninth Circuit has been ordered not to issue any more opinions in the case. At the same time, the case is now over because the student graduated, so the Supreme Court won't be hearing the case. "Clear the path" indeed. Thanks to Howard for the links.

  UPDATE: Oops, I see that Eugene beat me to it while I was drafting this. I guess I'll keep this post up given that it offers more details, but if readers would rather I delete it just let me know. Also, I have updated the post for readers who don't know what it means to "vacate" a decision.
Comments
An Appellate Procedure Perspective on the High School Anti-Homosexuality T-Shirt Case:

A reader writes:

[The Ninth Circuit panel decision in Harper v. Poway Unified School District is indeed] not binding precedent on the Circuit because it has been vacated by the Supreme Court. [But] I think it creates what is called a "come-back" situation. If appealed (certainty) the case should be assigned to the same panel as had the brother's case. Guess what they will do. By the time the case is ready for en banc, Kelsie (the sister) will have graduated from high school. The predictability of the panel re-doing what it did is pretty high. So the precedent will be back.

Very interesting.

Comments