Legal teams and experts across the nation are arguing before
the U.S. Supreme Court that the justices must step into a California school
case and overrule a “heckler’s veto” established by a lower court to prevent
phrases such as “Hope,” “Stand with Rand,” “Christ is risen!” and the Muslim
shahada from being banned.
It was a 9th U.S. Circuit Court of Appeals ruling in a
dispute over American flag T-shirts and the Mexican Cinco de Mayo holiday that
affirmed school officials can censor the passive speech of students – such as a
message on a T-shirt – if someone else threatens violence because of it.
“American students shouldn’t be
censored just because government officials think someone might be offended,”
said Senior Legal Counsel Jeremy Tedesco of the Alliance Defending
Freedom, one of the legal teams filing
friend-of-the-court briefs in support of overturning the ruling.
“The Supreme Court has made clear repeatedly that the
government cannot stifle speech on the basis that someone might consider it
controversial,” he said. “To engage in that kind of censorship is a gross
violation of the First Amendment and the civic virtue of robust debate that
public schools should embrace and encourage among students.”
WND
reported when the request
for review by the Supreme Court
was announced by Freedom
X and the Rutherford Institute, which are working on the case with the Thomas More Law Center.
The
case arose in 2010 when school officials at Live Oak
High School in Morgan Hill, California, south of the Bay Area, barred students
from wearing shirts bearing the U.S. flag on the Cinco De Mayo holiday,
“because other students might have reacted violently.”
Judge Diarmuid O’Scannlain warned in his dissent from the
9th Circuit the ruling would result in “mob rule.” He said: “The next case
might be a student wearing a shirt bearing the image of Che Guevara, or Martin
Luther King Jr. or Pope Francis. It might be a student wearing a President
Obama ‘Hope’ shirt, or a shirt exclaiming ‘Stand with Rand!’ It might be a
shirt proclaiming the shahada, or a shirt accounting “Christ is risen!’ It
might be any viewpoint imaginable, but whatever it is, it will be vulnerable to
the rule of the mob. “The demands of bullies will become school policy,” he
said.
The suit was brought on behalf of students who were told by
school officials, Principal Nick Boden and Assistant Principal Miguel
Rodriguez, to turn their flag-themed shirts inside out or remove them.
The parents of the students named in the case are John and
Dianna Dariano, Kurt and Julie Ann Fagerstrom, and Kendall and Joy Jones.
Freedom X said the students sued the district “after their
Mexican-American principal, claiming to be acting out of concern that Mexican
students might retaliate with violence, ordered them to remove their American
flag T-shirts or turn them inside out.”
Freedom X President Bill Becker said the 9th Circuit essentially
concluded that the U.S. Constitution “imposes a one-day-per-year calendar
restriction on the right to display our patriotism.”
“The First Amendment does not give some people free speech
rights while denying it to others,” he contended. “It’s unbelievable that we
need to remind the courts that American students at an American school have
just as much right to celebrate their heritage as Mexican students have. If the
principal had banned Mexican-American students from wearing Mexican flag T-shirts
on Memorial Day, you can bet the 9th Circuit would have struck that down.”
The American Freedom Law
Center said in its own brief the Supreme
Court should decide whether the 9th Circuit erred.
“One of the foundational First Amendment principles that the
9th Circuit’s decision disregards is that government officials may not restrict
speech based on listener reaction. This is known as a ‘heckler’s veto.’ By
permitting a heckler’s veto, the 9th Circuit’s decision affirms a dangerous
lesson by rewarding students who resort to disruption rather than reason as the
default means of resolving disputes,” said AFLC co-founder Robert Muise.
AFLC Senior Counsel David Yerushalmi said: “There is never a
legitimate basis for banning the display of an American flag on an American
public school campus. And by incentivizing and rewarding violence as a
legitimate response to unpopular speech, the 9th Circuit’s decision undermines
a bedrock principle of the First Amendment and provides a dangerous lesson in
civics to our public school students. The Supreme Court should grant review and
reverse this terrible decision.”
Both briefs cite the U.S. Supreme Court’s Tinker case as
establishing a benchmark for free speech. It involved similar circumstances:
students who wanted to wear an armband to protest the Vietnam war. Officials
feared a reaction and banned them. The high court overturned the decision.
In the current case, the briefs note that schools officials
were “concerned that the students’ clothing would lead to violence.”
“The Supreme Court has held time and again, both within and
outside of the school context, that the mere fact that someone might take
offense at the content of speech is not sufficient justification for prohibiting
it,” one brief arguea.
Another said, “If this decision is permitted to stand, it
will have a detrimental impact on all student speech by rewarding violence over
civil discourse and effectively invalidating Tinker.”
John W. Whitehead, president of the Rutherford Institute,
said there are “all kinds of labels being put on so-called ‘unacceptable’
speech today, from calling it politically incorrect and hate speech to
offensive and dangerous speech, but the real message being conveyed is that
Americans don’t have a right to express themselves if what they are saying is
unpopular or in any way controversial.”
“Whether it’s through the use of so-called ‘free speech
zones,’ the requirement of speech permits, or the policing of online forums,
what we’re seeing is the caging of free speech and the asphyxiation of the
First Amendment,” he said.
WND
reported later that a small group of
protesters who waved U.S. flags in front of Live Oak High School on another
Cinco de Mayo holiday were branded as racist.
http://www.wnd.com/2015/01/banned-hope-stand-with-rand-and-christ-is-risen/
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