Friday, February 28, 2014

In Blow to Free Speech, U.S. Ninth Circuit Upholds School Ban on Wearing American Flag T-Shirts

I understand that a high school campus is not the public square, and that school administrators must protect the safety and welfare of their students, but if you can't wear an American flag shirt at an American high school because radical leftist reconquista activists students threaten violence, then this isn't a free America anymore. The forces of leftist anti-speech have truly won the day.

At the Heritage Foundation, "Federal Court Upholds School Ban on American Flag T-Shirts."

And don't miss this outstanding analysis from Eugene Volokh, at the Washington Post, "Not safe to display American flag in American high school":

This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker‘s “forecast substantial disruption” test, such a heckler’s veto is indeed allowed.

The 9th Circuit decision may thus be a faithful application of Tinker, and it might be that Tinker sets forth the correct constitutional rule here. Schools have special responsibilities to educate their students and to protect them both against violence and against disruption of their educations. A school might thus have the discretion to decide that it will prevent disruption even at the cost of letting thugs suppress speech.

Yet even if the judges are right, the situation in the school seems very bad. Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.

And this is especially so because behavior that gets rewarded gets repeated. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?
A terrible decision.