ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Friday, April 21, 2006

The Ninth rides again....

When does a person's first amendment rights end? Sure there are the usual exceptions, shouting fire in a crowded theater, slander, libel, etc. But what about when you might damage another person's self-esteem?

Well the 9th circuit Court of Appeals, has essentially ruled that another student's (who apparently must be in some sort of minority group) right to self-esteem trumps a students right to express disagreement with a school sponsored event.

Eugene Volokh provides excellent analysis of this terrible decision (all emphasis mine):

Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, it said "Homosexuality is Shameful." The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.

Harper's speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" -- which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations -- are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."
Get that? Your rights are not as important as more vulnerable groups rights may be.

[...] any T-shirt that condemns homosexuality is apparently unprotected. So are "display[s of the] Confederate Flag," and T-shirts that say "All Muslims Are Evil Doers."

So presumably would be T-shirts that depict some of the Mohammed Cartoons, as the dissent quite plausibly suggests -- note that the majority's confederate flag example makes clear that even ambiguous statements are stripped of protection if they can be seen as insulting based on race, religion, or sexual orientation. So perhaps might be T-shirts that condemn illegal aliens, since those too are directed at "minority status such as race, religion, and sexual orientation" (the "such as" makes clear that race, religion, and sexual orientation needn't be the only "minority status[es]" that would get special protection from offensive viewpoints).

The majority "reaffirm[s] the importance of preserving student speech about controversial issues generally." But, according to the constitution, this First Amendment principle somehow omits speech about controversial issues having to do with race, religion, or sexual orientation.

The Gay-Straight Alliance has a constitutional right to argue that homosexuality is quite proper, that same-sex marriages should be recognized, that discrimination based on sexual orientation should be banned, and that antigay bigotry is an abomination. But when the other side of this debate "about controversial issues" wants to express its views, which will often have to rest on the theory that homosexuality is wrong, sorry, apparently it's not important to preserve student speech that expresses that view.
[...], Judge Reinhardt takes some unelaborated remarks by the Supreme Court about the First Amendment's not protecting student speech that "intrudes upon . . . the rights of other students," and fashions from them a constitutionally recognized right to be free from certain kinds of offensive viewpoints (not a right that is itself directly legally enforceable, but a right that the school may choose to assert as a justification for its viewpoint-based speech restrictions).
And this is the dangerous part of the decision. The 9th circuit is essentially saying discrimination of speech they disagree with is ok, because of the content of the speech, and who they think its targeting.

Eugene sums it up nicely in the following paragraph (once again, emphasis mine):

This is a very bad ruling, I think. It's a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It's an opening to a First Amendment limited by rights to be free from offensive viewpoints. It's a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.
Ditto. Justice Roberts? I'd love to hear your comments, perhaps you can review this case if its appealed further.

Your Co-Conspirator,
ARC: Brian