Dispatches from the Creation Wars

7th Circuit Upholds Anti-Gay T-Shirt

In a ruling I’ve been waiting for, the 7th Circuit Court of Appeals has upheld a student’s right to wear a mildly anti-gay t-shirt in response to the Day of Silence protest (see full ruling here). This is absolutely the right result, though I wish the ruling was more broad in its support of free speech. In this case, a student wore a t-shirt to class that said “Be happy, not gay” on the back and the school forced him to black out “not gay.” The court agreed that this was a violation of his free speech rights, and they are right.

One of the interesting things about the case is that the plaintiff agreed that the school could reasonably ban more pointed and negative messages on a t-shirt. They agreed that if he had worn a t-shirt that said “homosexuals go to Hell” then the school would be within its legitimate authority to prohibit such a message, but that it was not within such authority to ban the much milder “be happy, not gay” message.

That’s an interesting concession, though the limits of that would be hotly debated both in the real world and in the courts. But as a general principle, I think most courts would agree that a much harsher and more specific message — “Joe Martin is a faggot” — could legitimately be prohibited by a school under the Tinker standard. There is a distinction between making a general statement of belief about homosexuality and making a pointed and specific attack on a fellow student.

Also interesting, and I think important, is that Judge Posner makes a very clear distinction between rights and interests. This is important because he rejects an idea that I have long argued strongly against, the notion that people have a right not to be criticized. Posner writes:

But we cannot accept the defendants’ argument that the rule is valid because all it does is protect the “rights” of the students against whom derogatory comments are directed. Of
course a school can–often it must–protect students from the invasion of their legal rights by other students. But people do not have a legal right to prevent criticism of their beliefs or for
that matter their way of life. There is no indication that the negative comments that the plaintiff wants to make about homosexuals or homosexuality names or otherwise targets an individual or is defamatory. Anyway, though Beauharnais v. Illinois has never been overruled, no one thinks the First Amendment would today be interpreted to allow group defamation to be prohibited.

There are those who think that the first amendment should be interpreted that way, but they are wrong and their position puts the very notion of free speech in grave danger. This point is important because it correctly rejects the notion of group rights and it correctly rejects the notion that anyone has a right not to be criticized. There are some narrow circumstances in which the government may prevent such criticism — and school officials preventing specific harassment of a student is one of them — but the justification for that is not that a person has a right not to be criticized but that the school has a legitimate interest in preventing a breakdown in discipline and disruption of the educational process, and that interest sometimes (in circumstances as narrowly defined as possible) overrides free speech rights.

And in a general sense, I think the court strikes a pretty good balance here. They clearly would prevent a specific and pointed attack on a student (“Joey is a faggot” for instance), a highly derogatory attack on homosexuals as a group (“Fags go away” for instance), or even a harshly worded statement of belief (“homosexuals go to hell” for instance), but they rightly conclude that “be happy, not gay” is not enough to trigger the school’s interests in squashing free speech in this case.

On the specific t-shirt in question here, the court agreed with the plaintiff:

Nevertheless, “Be Happy, Not Gay” is only tepidly negative; “derogatory” or “demeaning” seems too strong a characterization. As one would expect in a school the size of
Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says “Be Happy, Not Gay” would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech. We are therefore constrained to reverse the district court’s order with directions to enter forthwith (the “Day of Truth” is scheduled for April 28) a preliminary injunction limited however to the application of the school’s rule to a T-shirt that recites “Be Happy, Not Gay.” The school has failed to justify the ban of that legend, though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light.

As the last sentence indicates, this is only a ruling on the preliminary injunction, not the final settlement in the case. There will still be a full trial on a permanent injunction, but the court needed to rule on this matter because the “Day of Truth” is scheduled for April 28. And I hope that when they do so they will adopt something more like the analysis provided by Judge Rovner in a concurring opinion. Rovner agrees with this particular outcome, but urges the court to stick to a narrow reading of Tinker and only allow the school to prohibit that speech which will cause imminent disruption of the school’s educational mission. Rovner writes:

Tinker straight-forwardly tells us that, in order for school officials to justify prohibition of a particular expression of opinion, they must be able to show that this “action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Under Tinker, students may express their opinions, even on controversial subjects, so long as they do so “without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and
without colliding with the rights of others.” The school district has “not demonstrate[d] any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities,” and no such disruption occurred two years earlier
when Nuxoll’s co-plaintiff wore such a shirt to school following the Day of Silence.

I agree with him, though even this narrow standard in Tinker has its flaws. The key danger lurking in the Tinker standards is that it allows, perhaps even encourages, the heckler’s veto. As long as someone is sufficiently offended to try and punch out the person speaking, then the content of that speech doesn’t matter because, by definition, it causes disruption in the school. That strikes me as dangerous, though it’s a far better standard than many of the alternatives.

These are not easy issues, of course, and for most of us they are highly dependent on whether we agree or disagree with the message being expressed. I try very hard not to make my position dependent on whether I agree with it, which is one reason why I support many forms of anti-gay speech even while being a passionate advocate of gay rights and equality. I think we are far better off to err on the side of protecting the expression we despise than in demanding that the government silence what offends us because doing so gives them equal power to silence what we say that offends others.

And incidentally, for the anti-ACLU loons who think the ACLU is just dying to censor anyone who dares to express anything remotely religious or anti-gay, the ACLU of Illinois issued a press release agreeing with this ruling. They filed an amicus brief in the case urging the court to uphold the student’s right to free speech.

By the way, there’s one statement in the ruling that is very important as a counter to the anti-gay loons who think that the Day of Silence is advocating homosexuality, as opposed to advocating that homosexuals be treated equally. Judge Posner, with his usual clarity, writes:

The goal of the “Day of Silence” is not to advocate homosexuality but to advocate
tolerance for homosexuals. A student club at Neuqua Valley High School called the Gay/Straight Alliance sponsors the “Day of Silence” at the school. Students participate by remaining silent throughout the day except when called upon in class, though some teachers, as part of their own observance of the “Day of Silence,” will not call on students participating in the observance. Some students and faculty wear T-shirts that day with legends such as “Be Who You Are.” None of the legends advocates homosexuality or criticizes heterosexuality. Indeed, opposition to harassment of persons who happen to be homosexual is consistent with disapproval of homosexuality itself.

Absolutely true.