Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
I've reported on this case before, one of many situations around the country where a school has forbidden students to wear t-shirts with even the most mild anti-gay sentiment on them. This usually happens in April when Gay-Straight Alliance clubs around the country hold the Day of Silence to bring attention to gay rights and religious right groups counter the next day with the Day of Truth.
This particular case was in Naperville, Illinois. Two students wore t-shirts on the Day of Truth that said the following:
Alexander Nuxoll and Heidi Zamecnik had tried to wear T-shirts that said on the front "My Day Of Silence, Straight Alliance, and the back read "Be Happy Not Gay" as a protest against the National Day of Silence in 2006.
The ADF filed suit on behalf of the two students after the school forbid them to wear the shirt but the district court ruled in favor of the school. The case is now on appeal to the 7th Circuit Court of Appeals, where the ACLU has submitted a brief on the side of the students:
In its brief supporting the ADF, the ACLU said in a statement that "the school's speech policy is unlawful on its face, because it broadly prohibits all speech that disparages protected classes, rather than carefully distinguishing protected speech from unprotected harassment."
I'm sure my longtime readers won't be surprised to hear that I agree with the ACLU's position here. While it is important to protect gay students from bullying and intimidation, we must draw those boundaries narrowly and within the limits of the first amendment.
Comments
One of the most frustrating experiences in college came in an American Culture class, where we were reading an article about the KKK's adopt-a-highway sign being vandalized. One of the other students said "I'm a card-carrying member of the ACLU, but I'm glad someone tore down that sign". A standard liberal undergraduate who would probably say that the anti-gay t-shirts shouldn't have been allowed. She didn't seem to realize that really being a card-carrying or hard-core member of the ACLU meant protecting speech even if you didn't like it.
Posted by: grad student | February 21, 2008 12:59 PM
Come on, Ed, leave something for the rest of us to comment on. When you say it so succinctly and correctly, you don't leave us much to add.
Posted by: James Hanley | February 21, 2008 1:28 PM
reply to grad student:
Are you sure that she didn't realize that "really being a card-carrying or hard-core member of the ACLU meant protecting speech even if you didn't like it." The quotation that you give from her seems to recognize this as she is comparing the expected behavior of a "card-carrying member of the ACLU" with her actual behavior. Thus the use of the word "but" Another way to read the statement would be "Despite the fact that I am a card-carrying member of the ACLU I support this infringment of free speech"
Posted by: jeff | February 21, 2008 2:03 PM
Living here in Northern California I find the Gay movement has more than their fair share of free speech. A little opposition to their behavior is not only appropriate but expected.
Posted by: AFSGTSAM | February 21, 2008 3:49 PM
In response to the situation grad student brought up, I think the approach Kansas City took to a KKK adopt-a-highway sign was one of the best I've seen -- they simply renamed that stretch to "The MLK Jr. Memorial Highway" or something similar. Nice way to let them have their free speech unobstructed and to make them really regret it at the same time.
Posted by: G Barnett | February 21, 2008 4:01 PM
Pardon? Are you suggesting that they should only be allowed a certain amount of free speech? Perhaps you don't really understand the concept of free speech, then.
Expected? Sure. Appropriate? Hardly.
Posted by: Skemono | February 21, 2008 4:25 PM
Posted by: Alex, FCD | February 21, 2008 6:04 PM
@G Barnett:
Here on the other side of the state (St. Louis), that stretch of road is now named for Rosa Parks.
Posted by: ChristheRed | February 21, 2008 6:38 PM
"One of the other students said "I'm a card-carrying member of the ACLU, but I'm glad someone tore down that sign"."
I'm not sure what is really wrong with that sentiment. The KKK has their free speech rights unrestricted by the state, and some citizen exercised their free speech through a small act of vandalism.
Let the KKK replace the sign - they can take it out of their (lynch rope) petty cash budget.
Oops - did I say something disrespectful of the KKK?
Posted by: Gingerbaker | February 22, 2008 1:50 AM
If the ADL wins the appeal, I predict that not only will the right-wing pundits not mention the ACLU's support of the students, they will actually trumpet the decision as a 'victory over the ACLU". I don't remember the details, but Pat Robertson did exactly that in a case involving his ACLJ.
Posted by: Terry Walsh | February 22, 2008 2:48 AM
I note that on all the right-leaning blogs and news sites I have read about this on, every single entry has mentioned the ADF - but not one has mentioned the ACLU, except to say that the ACLU is trying to silence Christians.
The right appears to *hate* the ACLU so viciously, they are incapable of accepting even the suggestion it might agree with them on something.
Posted by: Suricou Raven | February 22, 2008 5:21 AM
I want to agree with you on this one, but I'm not sure I can. Schools have a responsibility to promote a safe learning environment for everyone. That includes not letting students verbally assault each other. Day of Silence messages are about supporting students, this message was clearly an attack on gay students. My first impulse would be that the school has a right to ban it as a disruption of the learning environment. If a student followed another student around saying "Queer! Queer! Queer!" the school would, one would hope, tell the student to knock it off. What's the difference here? Of course there's the question of where to draw the line, but with enough thought one could probably do so in a way that balances free speech with the legitimate needs of the students and purposes of the school. Remember, the gay students are required to be there. They can't just walk away like you could on the street.
Posted by: Boo | February 22, 2008 8:16 AM
response to Jeff:
From context, it seemed clear that the student used the ACLU membership preface to lend weight to her opinion (in the "even people who fight for free speech would support this"). But then, I could have been reading it entirely the wrong way; everyone else in the room seemed to be raging liberal and I felt very defensive as the only person who didn't embrace Michael Moore and jeer Republicans.
response to GingerBaker:
Removing the KKK sign effectively negated the KKK's speech. Which means the people who took it down weren't exercising their own free speech, they were preventing someone else from doing so.
Posted by: grad student | February 22, 2008 12:29 PM
Posted by: Reality Czech | February 22, 2008 1:51 PM
Boo said:
You mean, other than that is not what the two students were doing? They were making a personal statement, as are most other students who wear tshirts endorsing products or rock bands or evolution or classical literature (our Latin Club had Cicero tshirts back in the day).
If there were any hint of a threat to go with the message, yes, the school has both the right and the responsibility to stop that. But there is not.
In fact, the real problem here and in lots of similar school free speech cases is that the kids are actively trying to communicate their ideas in an appropriate fashion and are nonetheless being banned by administrators. That is what makes it so frustrating, especially since the "Bong Hits 4 Jesus" case appears to say that administrators have almost unlimited control over content-specific regulation.
Posted by: kehrsam | February 22, 2008 2:52 PM
Why do Gay people have rights?? I thought all Americans are covered by the constitution. Applying the term "gay rights" to a human behaviorial choic is not what the founding fathers had in mind.
Posted by: AFSGTSAM | February 22, 2008 5:23 PM
Neither was applying it to blacks. What's you're point, AFSGTSAM?
Are you here with Barbara by any chance?
Posted by: Leni | February 22, 2008 6:49 PM
AFSGTSAM wrote:
All rights are individual; the only reason you hear the phrase "gay rights" is because those are the individuals being denied rights in this particular instance. And being gay is not a "human behavioral choice." Did you choose to be straight when you hit puberty? I didn't. Neither does any gay person choose to be gay.
Posted by: Ed Brayton | February 22, 2008 7:02 PM
grad student said:
"response to GingerBaker:
Removing the KKK sign effectively negated the KKK's speech. Which means the people who took it down weren't exercising their own free speech, they were preventing someone else from doing so."
Yes... but so what?
The girl in question didn't say she was against the free speech rights of the KKK. She said she was happy someone took down their sign. She didn't say she was happy someone impinged on the KKK's free speech rights.
What she implied, I believe, was that she was happy that we still live in a society where protest to the KKK will occur.
BTW, Since when should the KKK be allowed to sponsor a stretch of highway, ie, given the imprimatur of state sanction?
This is an organization whose basic philosophy is unconstitutional (the KKK doesn't respect, shall we say, the life or liberty of many of our citizens) and which historically advocates murder. Should the state allow them advertising space on the freeway, a public space, let alone accept monies from them?
My god - we can now expect in our country to deny a church the ability to use a public space to erect a creche, because that implies an unconstitutional state support of religion.
Yet the KKK can use a public space to advertise their logo - The "KKK", even though that logo and their organization stands for something completely unconstitutional?
What next? The North American Man Boy Love Association sponsorship of city rec parks?
Al Queda makes a donation, and the Holland becomes the Osama Bin Laden Memorial Tunnel?
Posted by: Gingerbaker | February 23, 2008 11:14 AM
Gingerbaker asked:
Yes, assuming they meet the eligibility criteria and pay any required fees. It's called free speech, and it is not the job of government to discriminate.
As for:
There are many, many splinter groups of the KKK, which has not been a national organization since the 1930s. Some of those groups still commit crimes, others do not. As long as this group is not shown to be acting in a criminal manner, they have the same right as other groups of citizens. Freedom of Association is in the First Amendment, too.
Posted by: kehrsam | February 23, 2008 11:43 AM
kehrsam said:
"It's called free speech, and it is not the job of government to discriminate."
But is it not the government's responsibility to protect the constitution? Is this not the basis for determining (discriminating) which religious symbols (speech) can or can not be placed in a public square by certain groups during Christmas?
Is the government not constitutionally responsible for protecting life and liberty? ( as in due process)
How can the government protect life and liberty by allowing speech on public property by groups that by definition threaten the life and liberty of certain classes of citizens?
Sorry - just can't get past the idea that pederasts are protected, but a creche is not.
Posted by: Gingerbaker | February 23, 2008 3:23 PM
That concept of free speech that you're so confused about is inside that very constitution. I'm bewildered that you're calling for upholding the constitution by ignoring its very tenets.
What the hell are you talking about? There's no discrimination. Either any religious group is allowed to put up displays, or none of them are.
What does that have to do with banning speech?
Because speech doesn't threaten life and liberty. You can talk your head off without threatening anyone.
Posted by: Skemono | February 23, 2008 8:00 PM
Gingerbaker: You are mistaken. There is no Constitutional prohibition against creches in the public square. If they are placed by the government, or the government allows the creche but no similar displays by other faith groups, then there likely is a problem.
Peace my friend.
Posted by: kehrsam | February 23, 2008 9:20 PM
Kersham and skemono, thanks for your replies.
I think you have misread my intentions - no doubt my post could have been written more clearly - this is what comes from convalescing on Vicodin.
I know that there is no Constitutional prohibition against creches. But discrimination ( in the sense of making a determination, as I wrote) takes place because the state is protecting our establishment constitutional interests. It either allows or disallows a creche in the public square depending on the circumstances.
And the state does this, because it has on obligation to protect the constitution. It therefore may restrict speech in the public square in order to protect constitutional rights.
Is not among our constitutional rights the protection of life and liberty, as derived from the due process clause?
So, the public square seems to be a different place than private property. The government has no interest in what a church can display on their own property, nor what the KKK or NAMBLA says at their meetings.
Unless these meetings take place on public property. Such as the case of the Philadelphia Boy Scouts who may lose their rental privileges of a public building because their organization has a history of sexual and religious discrimination.
So, evidently, on public property, the government has the duty to protect the constitution by restricting speech and by restricting public use. Public housing must not discriminate against race, etc.
The KKK and NAMBLA are organizations that have a history of either racial discrimination and/or frank criminality.
Why doesn't the state have the duty to restrict their access to public use based upon either life and liberty obligations, or anti discrimination obligations?
Posted by: Gingerbaker | February 25, 2008 12:43 PM