constitution

The U.S. Supreme Court is considering whether or not to review a California school free-speech case that could set a First Amendment precedent by allowing random censorship of “pure speech” because of what is called a “heckler’s veto.”

“This would be a terrible precedent,” Erin Mersino, an attorney with the Thomas More Law Center, one of several organizations pursuing the appeal from the 9th U.S. Circuit Court of Appeals, told WND.

She said the 9th Circuit decision was a stunning repudiation of the U.S. Supreme Court’s ruling in the Tinker case, which ruled students do not lose their constitutional rights at the schoolhouse door.

Under the 9th Circuit ruling, however, they do.

The decision allows blatant censorship of speech solely based on the fact that someone else might be angered by it.

Courts in the past, when striking down such provisions, have called it the “heckler’s veto,” literally allowing a heckler to shut down free speech because of a threat of illegal behavior, such as violence.

As WND reported, 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 that the decision 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.

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.”

See the full range of flags available at the WND Superstore, from the Star-Spangled Banner to the Betsy Ross flag, the Gadsden Flag, Coast Guard, Navy, Marine, Army and Air Force flags, as well as the Navy Jack and dozens more.

Also representing the plaintiffs are the American Freedom Law Center and the Rutherford Institute.

Their latest filing, just this week, was a response to the school district’s suggestion that there was no issue to investigate and the case should just be dropped.

School district officials declined to respond to a WND request for comment.

Their latest available online statement addressed the 9th Circuit ruling.

“The court’s grant of summary judgment in favor of the school, confirms that there is a delicate balance that must be achieved in protecting students’ First Amendment rights within the operational and safety needs of schools,” the district said. “In this particular instance, the court again confirmed that both the specific events of May 5, 2010, and the pattern of which those events were a part, were not unconstitutional. The ruling recognizes that school officials intervened in concern of a violent disturbance threat and that the threat that was on campus at that time was real. In holding that school officials did not act unconstitutionally on that day four-and-a-half years ago, the court recognized that the protection of student safety must be an administrator’s primary responsibility.”

The newest filing noted the 9th Circuit now disagrees with other appeals courts on the issue. The essential difference between the Supreme Court precedent in Tinker and the current case is that in Tinker, the permitted “speech” was armbands while in the California case the “speech” at issue is flag-theme T-shirts.

The brief said the Supreme Court “concluded that school officials violated the First Amendment when they prohibited students from wearing black armbands to protest the Vietnam War.”

“The court rejected arguments that the students could be punished for wearing their armbands because school authorities had an ‘urgent wish to avoid the controversy which might result from the expression.'”

“Prior to restricting petitioners’ message, school officials had no information that petitioners’ speech had caused any disruption whatsoever at the school, even though the students had been on campus for over three hours and attended at least two classroom periods in addition to homeroom,” the latest brief argued.

“Ultimately, this case is as much about the future of the free speech rights of students as it is about the situation at Live Oak High School on May 45, 2010. As Judge O’Scannlain warned, ‘interpreting Tinker to permit the heckler’s veto … opens the door to the suppression of any viewpoint opposed by a vocal and violent band of students,'” the brief argued

“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,” said John W. Whitehead, president of The Rutherford Institute. “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.”

See the full range of flags available at the WND Superstore, from the Star-Spangled Banner to the Betsy Ross flag, the Gadsden Flag, Coast Guard, Navy, Marine, Army and Air Force flags, as well as the Navy Jack and dozens more.

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