Eugene Volokh, a respected first amendment scholar, has a follow up post on the subject of the ruling I discussed yesterday and how it doesn’t seem to square with some of Judge Reinhardt’s earlier statements on free speech in schools. In the Harper ruling last week, Reinhardt argued that there is no first amendment protection for “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation”, even if those remarks are aimed at an important public controversy and are not aimed at any particular person or constitute abuse or harrassment. But look at his dissent in Lavine v Blaine School District in 2002:
I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) (“[T]he First Amendment [is] the guardian of our democracy.”) First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation’s officials or policies for any reason whatsoever.
But of course, Reinhardt didn’t really mean that “for any reason whatsoever”. If the reason for disagreeing with a government policy is disapproval of homosexuality, then all that talk about the first amendment being the key to the “very existence of our democracy” goes right out the window and it becomes important to censor such speech. He is in fact arguing that a student could wear a pro-Taliban t-shirt to school, where he might well encounter the children or siblings of someone who died removing them from power, but that same student cannot wear a t-shirt expressing their belief that homosexuality is sinful.
But there’s an even deeper level of confusion in Reinhardt’s arguments. Taking his two statements together, what would he do with a student who wore a t-shirt supporting the Taliban’s policies against gays? The Taliban was violently anti-gay, putting people to death for it regularly. On the one hand, he has argued that a Taliban sympathizer can express those views in school and even argued passionately that any ruling to the contrary would strike at the very heart of our system. On the other hand, he has argued that no student should be allowed to say anything that might be construed as anti-gay.
And one more level of confusion: he has argued that you cannot allow any student speech that is derogatory and “directed at students’ minority status such as race, religion, and sexual orientation.” Fundamentalist Muslims are, of course, a minority religion in this country. Which means, under Reinhardt’s standard, you could not wear a t-shirt condemning the Taliban or their barbaric policies, because that might be insulting to a minority religion, but you can wear a t-shirt supporting them…unless it supports their anti-gay policies, then refer to the previously stipulated bit of confusion.
This highlights the problem once you allow schools to choose which controversial messages can be expressed and which can’t. I would argue that a student should be allowed to wear either t-shirt, or none at all – a blanket, viewpoint-neutral policy that says no one can wear any clothing with political statements on them, for example, might pass constitutional muster because it is not related to the viewpoint. But the last thing we should want is for government officials to pass judgement on which political statements are worth protecting and which are not. Volokh is correct when he says:
Under existing First Amendment precedents, there is a viewpoint-neutral First Amendment exception for disruptive speech in schools. Sometimes speech that’s hostile based on race, religion, or sexual orientation — as well as speech that offends people for a wide variety of other reasons — might indeed lead to substantial disruption, and thus might be restricted.
But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn’t categorically cast out certain student viewpoints from First Amendment protection. While the standard isn’t without its problems, it is at least basically consistent with the First Amendment principle of “equality of status in the field of ideas.” And there are quite plausible arguments that the government as K-12 educator should have still broader authority over speech in public schools (though this too would be a viewpoint-neutral First Amendment exception). What bothers me is the Ninth Circuit’s newly minted viewpoint-based First Amendment exception, which singles out certain ideas for lack of constitutional protection.
It is the viewpoint-specific nature of these restrictions that is dangerous and contrary to the first amendment.