9th Circuit Censors Student Speech

lawrocket · April 21, 2006

And it's a case with some pretty tough issues. On the one hand, you had a kid in a school who wore a shirt that said, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" handwritten on the front, and "HOMOSEXUALITY IS SHAMEFUL" handwritten on the back. The kid's school had a policy that prohibited students from wearing shirts that denigrate others.

As a background, the kid wore the shirt to protest the Poway School's "Day of Silence" in 2004, which was sponsored by the school's Gay-Straight Alliance to problem solve the issue fo altercations that occurred in 2003's "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." That same year, a group of students counter-organized a "Straight-Pride Day" where they wore shirts denigrating homosexuals.

The teacher informed the student that the shirt violated the dress code and created a hostile environment. The kid asked for an administrator and got one. He was kept in a separate room the rest of the day, though not suspended or otherwise disciplined.

He filed suit a few weeks later, asking for a number of types of relief. Among them was an injunction that prohibited the school from enforcing its policy, which was denied and then appealed.

Now, the majority when reviewing this case found that students are a captive audience who are entitled to a safe, secure and effective learning enviroment under the Tinker case. First, a school may regulate student speech that would "impinge upon the rights of other students." Tinker, 393 U.S. at 509. Second, a school may prohibit student speech that would result in "substantial disruption of or material interference with school activities." The court found that the shirt impinged upon the rights ofd other students - the first prong.

There was a lot more written about, but there is the crux - if something happens that looks like it could impinge on the rights of other students, the school can ban that speech. I find this goofy - this, in a sense, gives a heckler's veto to any one individual about anything said.

Alex Kozinski, in his dissent, wrote "There is the question of whether we should tolerate intolerance, a question as imponderable as a Mobius strip,"

What about the school-sponsored event? It appears quite obvious that this kid was offended by the Gay Pride speech (sure, the kid is an asshole, but that's beside the main point). The standards are way more strict with regard to school-sponsored speech.

So, let's say that at next year's gay tolerance event, a bible-thumper kid says he's offended?

Let's say that tomoroow some bible-tumper is offended by a kid wearing a rainbow t-shirt - he honestly and truly believes that God will smite him for associating witht he wearer.

It seems that, under this case, the school shoudl have the kid change his shirt or segregate him.

The judge who wrote the opinion, Reinhardt, wrote, "T-shirts proclaiming 'Young Republicans Suck,' or 'Young Democrats Suck,' for example, may not be very civil, but they would certainly not be sufficiently damaging to the individual or the educational process to warrant a limitation on the wearer's First Amendment rights."

So Reinhardt talked about what was civil and what was not. What is acceptable and what is not. What groups can be targeted and what groups cannot. So, how can schools administer this decision? How can they make sure that one group doesn't trample another - or trample another's right to fight back from the trampling of another?

Kozinski put it this way in the dissent:

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"Consider those who participate in the Day of Silence. They, of course, believe they are doing so to promote tolerance and equality. But others -- like Harper -- might view it as an effort to exalt homosexuality and denigrate their own sexual orientation and religious beliefs. Relying on the same overbroad policy that the school used to ban Harper's t-shirt, the school could, if it chose, easily ban the Day of Silence activities as demeaning the sexual orientation of straight students, or the religious beliefs of Christians like Harper.

"All manner of other speech, from the innocuous to the laudable, could also be banned or punished under the school's hate speech policy. May a student wear a Black Pride t-shirt, or does this denigrate white and Asian students? May a student wear a t-shirt saying "I love Jesus," or will this make Jews, Muslims and Druids feel it's an attack on their religions? May a student wear a t-shirt saying "Proud to be a Turk," or will this cause bad vibrations for the Greeks and Armenians in the school? Will a student be disciplined for disruption if, during a lunch-time discussion, he argues forcefully that the State of Israel oppresses Palestinians and, when called on it, defends himself, saying: "I said it because I' m proud to be a Muslim." ?

It comes down to normative values. The schools themselves decide what is an appropriate thing to protest and what is not. You can speak on behalf of gays, but you better speak against them. This is content-based speech.

Kozinski hit the nail on the head - this is unworkable, unless you've got one side winning - and one viewpoint trumping another is, yes, censorship.

Another interesting thing about this case, which is, in my opinion a positive development substantively, but I detest the way the court went about it - the majority decided that sexual orientation gets the same protection from persecution as race or religion. Again, I see this as a positive.

Still, this court, deciding the issue of an injunction, went way beyond the scope of what was at issue in this appeal. In effect, they decided, "While we're at it, let's find that sexual orientation gets strict scrutiny." It's like a kid telling a judge, "I don't want to live with my dad. I want to live with my mom" and the court saying, "Hmm. You know. I think the father's right to have custody should be considered as sacrosanct as the right to be free from slavery. Therefore, all fathers have the right to custody that shall not be infringed." It's a big, "Where did THAT come from" moment, legally speaking.

Furthermore, the majority cited all kinds of statistics and studies and data showing the harm that occurs to gay students. From an evidentiary standpoint, what the fuck?

This is "judicial activism." Now was the opportunity to create a new rule of law, and done in a way that hasn't been done.

This is why I don't like what happened. I'd like a rule of law giving equality among sexual orientations. But do it the right way, using the right process.

My personal opinion is that I am never in favor of banning speech. Period. End of story. That's it.

Yelling "FIRE!" in a crowded theater? No, it shouldn't be banned. But a person should do jail time for assault, homicide (if a death occurs), etc., for doing it.

Is the anti-gay shirt harmful? If so, every harm has a remedy. Sue the person who has harmed you. Your boss filling the air with racial epithets and expletives that make your work environment hostile? Should we ban the speech? Or, should we just hit him in the wallet hard enough that he or anyone else will know better in the future?

Banning any speech of any kind, especially via judicial operation, poses too significant a danger, and is a slippery slope we've started down. IF we don't get a grip now, we may end up sliding off the cliff.

My wife is hotter than your wife.

kelpdiver · April 21, 2006

you're making this far more complicated than it needs to be.

Students don't have carte blanche on the dress code in the name of free speech. It's that simple. And if the opposing judge doesn't see the difference between "I love Jesus" and "Homesexuality is shameful" (affirming versus denigration), he's a moron.

If you want to argue on separation of state - that the school can't declare that homosexuality is untouchable, which is not federally true and may be argued as a religious declaration - maybe there's something to talk about.

But a student wearing a deliberately inflammatory message - hell, the kid can either cover it up or go home. If his parents want to make a case over the Day of Silence, let em. That way you still get work, unlike the lame suggestion that other kids sue him instead.

lawrocket · April 22, 2006

You are skirting the issue. The ruling stated that schools can ban anything deemed "offensive" or "disruptive." This is extraodinarily vague and overbroad, isn't it? It's, once again, the "heckler's veto."

But here's something else that is footnoted by Reinhardt (footnote 27): "Our colleague ignores the fact that our holding is limited to injurious speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group."

While dicta, it suggests pretty plainly, that a shirt that says, "White students suck ass" or "Fuck Straight Guys (with a sandpaper condom)" would be protected.

This is my issue - it either: 1) makes it all right to ban all speech that is potentially offensive; or 2) it bans offensive speech directed at some, and allows offensive speech directed at others.

The latter is called, "Censorship." The former is unworkable.

My wife is hotter than your wife.

headoverheels · April 22, 2006

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Sue the person who has harmed you.

Spoken like a true lawyer.

Samurai136 · April 22, 2006

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Now, the majority when reviewing this case found that students are a captive audience who are entitled to a safe, secure and effective learning enviroment under the Tinker case. First, a school may regulate student speech that would "impinge upon the rights of other students." Tinker, 393 U.S. at 509. Second, a school may prohibit student speech that would result in "substantial disruption of or material interference with school activities." The court found that the shirt impinged upon the rights ofd other students - the first prong.

Good points. I'm waiting for the courts to make a reasonable 'interpretation' and declare that all public schools must have uniform dress codes.

"Buttons aren't toys." - Trillian
Ken

kelpdiver · April 22, 2006

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You are skirting the issue. The ruling stated that schools can ban anything deemed "offensive" or "disruptive." This is extraodinarily vague and overbroad, isn't it? It's, once again, the "heckler's veto."

there is no issue - minors don't enjoy full rights, and esp at school.

If he wants to picket the perimeter of the school at the end of the day, or act in civil disobedience by not attending class and doing the same, great.

Richards · April 22, 2006

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On the one hand, you had a kid in a school who wore a shirt that said, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" handwritten on the front, and "HOMOSEXUALITY IS SHAMEFUL" handwritten on the back.

That is a pretty nasty t-shirt. I can't see how it would be acceptable to let the student wear it.

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So, let's say that at next year's gay tolerance event, a bible-thumper kid says he's offended?
Let's say that tomoroow some bible-tumper is offended by a kid wearing a rainbow t-shirt - he honestly and truly believes that God will smite him for associating witht he wearer.
It seems that, under this case, the school shoudl have the kid change his shirt or segregate him.***

No. You can't compare a t-shirt that says "Homosexuality is shamefull" to a gay pride t-shirt. If the gay student wore a shirt saying "Christian fundementalism is backward and repressive" you would have a more appropriate comparison. In that case I would expect the gay student to change the shirt. Basically as long as you are not overtly attacking someone for their beleifs, lifestyle etc., then you should be allowed to wear what you want regardless of whether or not someone likes the tone. For example if the christian student had a shirt that did not atack anyone but promoted Christ then it would be fine

May a student wear a t-shirt saying "I love Jesus," or will this make Jews, Muslims and Druids feel it's an attack on their religions? May a student wear a t-shirt saying "Proud to be a Turk," or will this cause bad vibrations for the Greeks and Armenians in the school?

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These are not overt attacks on other people. The others have the right to wear their own religious t-shirts.

Is the anti-gay shirt harmful? If so, every harm has a remedy. Sue the person who has harmed you. Your boss filling the air with racial epithets and expletives that make your work environment hostile? Should we ban the speech? Or, should we just hit him in the wallet hard enough that he or anyone else will know better in the future?

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I would rather have leadership that makes decisions and doesn't always please everybody. Your approach would result in everyone spending considerable amount of time in courtrooms going after eachothers wallets. Sure the lawyers in the middle would be happy but everyone else would be getting sued. I would rather have reasonably clear guidelines than act in innocence and find out after someone is offended, that I owe them money.

Banning any speech of any kind, especially via judicial operation, poses too significant a danger, and is a slippery slope we've started down. IF we don't get a grip now, we may end up sliding off the cliff***

We can apply slippery slope to any debate though. Any good idea can be deemed bad because of the slippery slope that it could lead to.

The school needs to try to the best of it's ability to provide a supportive non-hostile learning environment. Wile there will always be people who get offended at certain ideas, overt attacks on people have no place in a school.

Richards

My biggest handicap is that sometimes the hole in the front of my head operates a tad bit faster than the grey matter contained within.

akarunway · April 22, 2006

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Now, the majority when reviewing this case found that students are a captive audience who are entitled to a safe, secure and effective learning enviroment under the Tinker case. First, a school may regulate student speech that would "impinge upon the rights of other students." Tinker, 393 U.S. at 509. Second, a school may prohibit student speech that would result in "substantial disruption of or material interference with school activities." The court found that the shirt impinged upon the rights ofd other students - the first prong.

Good points. I'm waiting for the courts to make a reasonable 'interpretation' and declare that all public schools must have uniform dress codes.

Yeah. W/ little embroirderd swastikas on em

I hold it true, whate'er befall;
I feel it, when I sorrow most;
'Tis better to have loved and lost
Than never to have loved at all.

Samurai136 · April 22, 2006

I was thinking more allong the lines of a Thobe or Abaya....

"Buttons aren't toys." - Trillian
Ken

jenfly00 · April 22, 2006

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Sue the person who has harmed you.

Spoken like a true lawyer.

No, spoken as a true lawyer.