supreme-court

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.”

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.

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.

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.

Note: Read our discussion guidelines before commenting.