The Ninth Circuit rules that the First Amendment only protects approved points of view. Volokh points out that this is a far worse ruling for freedom of speech than previous restrictions:
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."The Ninth Circuit wasn't content to rule on the specific case, either. They are happy to provide examples of other sorts of speech that the First Amendment doesn't protect, so that future jurists and administrators can project a nice penumbra of forbidden speech.
This isn't limited to, say, threats, or even personalized insults aimed at individual student. Nor is there even a "severe or pervasive" requirement such as that requirement to make speech into "hostile environment harassment" (a theory that poses its own constitutional problems, but at least doesn't restrict individual statements).
Part of a school’s “basicSchools do indeed require discipline, and the school is in the right to remove hostile messages so that education can continue. I agree that far.
educational mission” is the inculcation of “fundamental values of habits and
manners of civility essential to a democratic society.” Fraser, 478 U.S. at 681
(internal quotation marks omitted). For this reason, public schools may permit,
and even encourage, discussions of tolerance, equality and democracy without
being required to provide equal time for student or other speech espousing
intolerance, bigotry or hatred. As we have explained, supra pp. 28-29, because a
school sponsors a “Day of Religious Tolerance,” it need not permit its students to
wear T-shirts reading, “Jews Are Christ-Killers” or “All Muslims Are Evil Doers.”
Such expressions would be “wholly inconsistent with the ‘fundamental values’ of
public school education.” Id. at 685-86. Similarly, a school that permits a “Day of
Racial Tolerance,” may restrict a student from displaying a swastika or a Confederate Flag.
Yet the ruling is wrong in its assertion that a ban of this type leads to "fundamental values of habits and manners of civility essential to a democratic society." What would lead to those things is an open and respectful discussion of differences, in which one's right to think a certain way is protected -- as is the right of others to dissent. Stating that "discussions of tolerance [and] equality" are to be encouraged is fine and dandy, but this ruling does exactly the opposite of promoting tolerance and equality. It creates one point of view that is the official one, and one point of view that is totally banned from even symbolic representation. Not only can you not say it, you can't even wear a t-shirt with a symbol representing it.
That doesn't lead to an idea of tolerance or equality. It leads to an idea that ideas with which we do not agree must be silenced -- completely suppressed, so that not even their image offends our eyes.
Just as it does not lead to an idea of tolerance and equality, it doesn't lead to an actual situation of tolerance and equality. It's not only that the courts favor one viewpoint over another. It's that the people who have the disapproved points of view are forced to gather and express themselves outside of the public square. That leads to division within society, distrust between those "secretive" groups and people outside of them, the splitting of society into hostile factions.
How different if they been permitted to express their views in a respectful setting, in which their right to their views was protected but so also was the right to dissent! For one thing, that really would teach the habits of tolerance and respect necessary for a society in which people with competing interests and different upbringings have to live together and make space for each other. Also, in that situation, the "negative" views might be challenged and perhaps even changed. If they are wrong and you are right, what do you have to fear from the contest? You ought to welcome it.
As it stands, what we shall get is "discussions of tolerance" in which the opposing view is condemned without being presented. That will convince no one, because without an advocate for that view there is no chance of the view being presented fairly. If you don't speak to the actual point of view, or take time to understand what it is, you can't begin to persuade the people who hold it. It's like trying to push a rock when you don't know exactly where the rock is.
But don't we know everything we need to know about this rock? Why should we try to understand these points of view, which are -- so the Ninth Circuit tells us -- so wrong as to be outside the realm of protected speech?
Perhaps it is because our idea of them is incomplete. The purpose of education surely includes expanding our awareness of competing points of view. Should we not hear them?
I don't understand the particulars of this student's point of view well enough to advocate for him. He should speak for himself -- the very thing the court says he has no right to do. But I do understand the particulars of another one of the banned forms of speech, so I shall speak for it instead.
Consider the mention of "the Confederate flag" as a banned symbol. In the opinion of the court, it is the equivalent of the swastika. That seems to me like a point of view that ought to be fully argued, rather than simply asserted. To me, the Confederate flag is a positive symbol that represents nothing so much as the concept of home. It meant home to me, both physically and culturally, long before I'd ever heard of a Civil War or a place called the Confederacy. As I've argued recently, love of country -- of home -- is as natural to a man as love of father and mother. It's an honest and proper thing to love home and its symbols, and to feel inspired to defend them. Being asked to feel ashamed of your country is as likely to distort and deform the mind as being ashamed of your family.
That point of view, which is often summarized as "Heritage not Hate," is apparently not to be presented in a public school; while the point of view that the Confederate flag is the moral equivalent of the swastika is approved. The Confederate flag rarely gets a fair hearing, and is generally presented from a one-sided-negative point of view. That's the case even before this ruling.
I respect that there are people who have strongly negative views about it, just as I have strongly positive ones. I am willing to meet them halfway. They might be willing to meet me halfway, if they understood where I stand and why I stand there.
Now they shall not, because they will never have the argument presented to them. What they will have presented instead is an unfair version of the argument, a straw man stood up only for the purposes of tearing it apart.
Where we might have had tolerance and mutual respect, we will have suspicion and hostility. We might have had engagement and a finding of common ground. Now any ground in between shall be No Man's Land.
There is a great deal at stake in the courts right now. There remains much to do.
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