Ninth Circuit Ruling Opens the Door To Suppress Free Speech

Court rules in favor of school prohibiting American flag apparel

AP

A Ninth Circuit Court of Appeals ruling could have wide implications that limit free speech rights in schools, according to the lawyer who defended students who wore the American flag to school.

More than four years after students were sent home for wearing American flag t-shirts on Cinco de Mayo, the appellate court upheld its decision that school officials were justified in prohibiting speech out of safety concerns. The case now may be headed to the Supreme Court, in a ruling that dissenters called throwing the First Amendment to the "rule of the mob."

"This decision turns the First Amendment on its head," said Robert J. Muise, an attorney for the American Freedom Law Center who defended the students and parents in the case.

Dariano v. Morgan Hill Unified School District stems from a 2010 incident at Live Oak High School in Morgan Hill, Calif., where a group of students wore American flag t-shirts to school on Cinco de Mayo.

Mexican students grew upset at the shirts, saying, "They are being racist. F*** them white boys. Let’s f*** them up," according to the Ninth Circuit’s ruling.

School officials then responded to the disturbance by telling students to either turn their American flag shirts inside out or be sent home with an excused absence.

The Ninth Circuit ruled that officials were right to remove students wearing the American flag because their decision was "tailored to avert violence and focused on student safety."

Dissenting judges in the case, led by Judge Diarmuid O'Scannlain, argued that the ruling has wide implications, and contradicts a 1969 Supreme Court decision, Tinker v. Des Moines. That case ruled in favor of students who wore black armbands to school to protest the Vietnam War, stating, "Students don't shed their constitutional rights at the school house gates."

"Live Oak’s reaction to the possible violence against the student speakers, and the panel’s blessing of that reaction, sends a clear message to public school students: by threatening violence against those with whom you disagree, you can enlist the power of the State to silence them," wrote Judge O’Scannlain in his dissent.

The ruling allowed what is known as a "heckler’s veto," when a person’s freedom of expression is limited in favor of others who might react negatively to the speech.

O’Scannlain argued that permitting the heckler’s veto in this case "opens the door to the suppression of any viewpoint opposed by a vocal and violent band of students."

"The next case might be a student wearing a shirt bearing the image of Che Guevara, or Martin Luther King, Jr., or Pope Francis," he wrote. "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 announcing ‘Christ is risen!’"

"It might be any viewpoint imaginable, but whatever it is, it will be vulnerable to the rule of the mob," O’Scannlain wrote. "The demands of bullies will become school policy. That is not the law."

Muise agreed with the dissent, saying that the proper role for the government is to protect those exercising their First Amendment rights, instead of catering to others’ threats of violence.

"The case law is clear that the First Amendment knows no heckler’s veto," he told the Washington Free Beacon in an interview. "To allow speech to be suppressed just because it is unpopular imperils the First Amendment. If anything the First Amendment is designed and intended to protect unpopular speech."

"You’re incentivizing the government to silence unpopular speech and you’re incentivizing the listener to engage in or threaten to engage in behavior to silence unpopular speech," Muise said. "Either one of those is going to cause an erosion of our First Amendment freedoms."

He added that the case creates a harmful precedent that could be applied to a number of issues, including gay rights, or debates over abortion.

The American Freedom Law Center intends to pursue the case to the Supreme Court. A petition for the high court to consider the case is due by Dec. 16.

Muise said it is likely the Supreme Court will take up the case, especially since the Ninth Circuit’s decision creates a split with the Seventh and Eleventh Circuits’ rulings on similar cases. At least one state attorney general has already offered to file a brief to support the students’ lawsuit.

"That’s just a signal to the Supreme Court that, look, you’ve got three other appellate judges out here that think that this case needs to be taken up and reversed," he said.

"I think the Supreme Court is going to pay attention to this one."