Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
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.
Comments
Thanks for outing me Ed....
Posted by: Joe Martin | April 28, 2008 9:57 AM
I would love to know how J. Thomas would rule in such a case, given that two competing conservative political objectives are in play, i.e., suppressing speech and denigrating gays.
On the one hand he perceives very narrow speech rights for students given his statements in Bong Hits for Jesus. On the other hand, Scott Gerber has shown statistically significant evidence that Thomas's rulings nearly always follow conservative political objectives rather than maintaining any consistency towards a particular interpretative technique, contrary to Thomas' claims of course.
Gerber's analysis on Thomas' first five years on SCOTUS was in his book, "First Principles: The Jurisprudence of Clarence Thomas".
Posted by: Michael Heath | April 28, 2008 10:15 AM
Ed - I had some problems with the link you provided to the opinion. Here is a link that worked for me for both the oral argument and the opinion itself:
http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=08-1050&submit=showdkt
Posted by: Michael Heath | April 28, 2008 10:29 AM
I'm disturbed that the underlying premise (of supporting the right of students to wear the "Be Happy, Not Gay" t-shirts) is that homosexuality is a behavioral choice, not an innate characteristic. I can't believe anyone would support a shirt saying "Be White, Not Black" or "Be American, Not Hispanic". Statements like these would be considered totally unacceptable (not to mention ridiculous). Why is it considered acceptable and Constitutional to attack someone based on an innate characteristic?
Posted by: Tim Limbert | April 28, 2008 10:58 AM
"or even a harshly worded statement of belief ("homosexuals go to hell" for instance)"
I wouldn't call that harshly worded.
How else can the belief the expressed?
Posted by: Felix | April 28, 2008 11:12 AM
Tim-
Truth is not a test of constitutionality. The first amendment protects the saying of stupid thing as well as non-stupid things.
Posted by: Ed Brayton | April 28, 2008 11:46 AM
This strikes me as a case of a judge ignoring any concept of practicalities.
No doubt the judge who made this decision has a fair amount of time to arrive at the decision. Does he think schools have a similar amount of time ? Student turns up with a t-shirt with a slogan on it, school not sure if slogan is acceptable. What does the school do then ? They have to make a decision within a short period of time. I do not imagine most schools have lawyers versed in US constitutional law on the staff.
Posted by: John Doe | April 28, 2008 12:25 PM
So, borrowing from Tim, is "Be White not Black" a constitutionally protected "stupid thing" or is it an unconstitutional 'pointed attack'. If being 'gay'is an innate characteristic, again borrowing from Tim, as opposed to a 'choice' do you (or the court) still consider "Be happy Not gay" a protected criticism? I suspect the scientific consensus (perhaps not the court's) is that 'gay' is an innate characteristic and the court's ruling in this case is a slippery slope (leading to Tim's examples). Criticism of one's ideologies is to be expected/protected but criticism of one's innate characteristics probably aligns more with an unprotected 'pointed attack'.
Posted by: Jeff | April 28, 2008 12:56 PM
The fact that a trait has a genetic component has little to do with whether it can be criticized or not. No one doubts that a tendency toward violence has a genetic component, but at the same time no one would complain that criticizing a tendency toward violence is wrong. So it isn't as simple as "if innate, no criticism allowed." And again, none of this is a test of constitutionality. The restrictions allowed in a school setting are certainly broader than the restrictions allowed in a non-school setting. Even the most harshly critical statements are constitutionally protected among adults, while in school there is a particular interest in preventing disruption that does not exist in the broader society. Plus, these are children involved and not adults, and they are required to attend school.
Posted by: Ed Brayton | April 28, 2008 1:33 PM
"Truth is not a test of constitutionality. The first amendment protects the saying of stupid thing as well as non-stupid things"
I agree with that, but we're talking about something that creates a hostile environment, in this case a school, but it could be in a workplace, also. The First Amendment does not allow you to create a threatening environment for your fellow students or coworkers. I would argue that criticizing someone's ideas does not necessarily create a hostile environment, but attacking someone's physical characteristics certainly does.
Posted by: Tim Limbert | April 28, 2008 1:40 PM
Tim Limbert: "The First Amendment does not allow you to create a threatening environment for your fellow students or coworkers."
True, but the shirt in question isn't really threatening. It says "be happy not gay" not "be happy not gay or else I'm going to beat you". I haven't heard anything in this particular case where the student in question was threatening anyone.
"attacking someone's physical characteristics certainly does"
I agree completely. Now convince these folks that it is a physical characteristic and not a choice. Critisizing someones choices is just fine, even if you and I disagree with the critisism.
Posted by: jba | April 28, 2008 2:22 PM
How about a shirt critical of obesity? Pointed attack (causing a hostile environment or disruption) or protected criticism?
Posted by: Jeff | April 28, 2008 2:25 PM
"Now convince these folks that it is a physical characteristic and not a choice. Critisizing someones choices is just fine, even if you and I disagree with the critisism."
I guess that's the crux of the issue. To me, sexual orientation is clearly innate, as much as skin color or ethnicity, and therefore attacking that characteristic strikes me as really offensive and inherently hostile. (I mean, what could feel more hostile than to be criticized for something you can't change?) Obviously, to someone who believes it's a chosen behavior, it's fair game.
Again, being a school teacher, I'm looking at this from a schoolhouse (or workplace) perspective, which I believe was the context of the issue. I've always argued that Nazis are free to publicly claim that blacks and Jews are genetically inferior, in spite of the evidence to the contrary. However, I wouldn't say they have a right to wear t-shirts to school or work that express that sentiment.
Posted by: Tim Limbert | April 28, 2008 2:38 PM
Jeff: depends on how the shirt expresses disapproval of obesity, not just the fact that it does. "Get thinner, be happier" would be ok, while "Kill the fatties" would not be acceptable.
Most of the examples given above about "innate characteristics" have to do with race, and considering the history of race in the US, schools probably have a special interest in avoiding racially loaded speech. Other kinds of innate characteristics might not be similarly dangerous. I could see a court upholding the right of a student to wear a shirt advocating gender-separated education, for instance.
Posted by: Matthew L. | April 28, 2008 2:46 PM
Tim Limbert: "I've always argued that Nazis are free to publicly claim that blacks and Jews are genetically inferior, in spite of the evidence to the contrary. However, I wouldn't say they have a right to wear t-shirts to school or work that express that sentiment."
I agree. I just don't think that this particular shirt reaches anywhere near that point. I think it's ignorant, but I just don't see how it can reasonably be construed as a threat. Might it make a gay kid uncomfortable? Sure. But I think that the discomfort is on the same level as the way a kid who thinks homosexuality is evil would feel about a pro-gay shirt.
Let me ask you this, if one of your students was wearing this shirt would you try to stop it? And if one of your students was wearing a shirt that said something like "be out of the closet, not in" would you try to stop them? What justifications would you use?
Posted by: jba | April 28, 2008 3:06 PM
Tim Lambert -
I both agree and disagree with you. I think it is very much dependent on the nature of the criticism.
Jeff gives a perfect example, though it is hard to tell how he would come down on it. I know a lot of people who are critical of obesity and are very vocal about it. Should they have their freedom of expression suppressed because it might hurt the feelings of someone who is obese? Keeping in mind that many of them feel the way they do, because they sincerely care about people who are obese and want to offer pressure for them to try to change.
OTOH, there are ways of expressing their opinion that would be rightfully deemed inappropriate and hostile. The difference between a shirt that says "fat people suck" and one saying "obesity kills."
Where I think we disagree is in the notion that there can be a clear line. A lot of folks disagree with me on this, including Ed, but I think that schools should be allowed to pass blanket bans on expressive t-shirts. I am very much in favor of strict dress codes or even uniforms. I don't believe that this is necessary in every school, but I think it would be very useful in a lot of them.
Posted by: DuWayne | April 28, 2008 3:13 PM
DuWayne: "but I think that schools should be allowed to pass blanket bans on expressive t-shirts. I am very much in favor of strict dress codes or even uniforms."
I agree. I didn't use to (in fact it was an argument you made on a thread some time ago that changed my mind) but frankly, I just don't think you can trust kids to be reasonable. Well, people in general, but kids in particular. They are in school to learn and if clothes are going to be that much of a distraction then I think uniforms or dress codes are pretty much the only answer. "Sensitivity training" and the like just does not work in my experience. There are a great many ways to express yourself and be an individual without clothes. Like you said, not all schools will need them, but if it comes down to it then I think cutting out an obstacle to learning trumps the freedom to wear distracting clothes. But if you restrict one type of expression (ex: be happy not gay) then I think you really have to also restrict the opposite, which is why blanket bans or uniforms are the only answer I can see.
I would really prefer it if people could wear what they want and everyone could just get a grip... but I'm not holding my breath.
Posted by: jba | April 28, 2008 3:38 PM
I think it's easy to overstate the equivalence of race and sexual orientation. Even if both are innate in a sense (and I think they are), they are still different things and will always be treated differently. The genetic component for behaviors and desires likely operates differently than the genetic component of, say, skin color or eye color. And I think we do see a difference between the first and the second type of characteristic, for several reasons. First, because behaviors and desires are not as simple, as either/or, as skin color or eye color; the genetic component tends to control a tendency rather than a simple "if you have gene x, you're going to have x behavior" situation. Second, because those tendencies, at least partially genetically determined, can be both good or bad (whereas skin color or eye color, because they do not cause specific behaviors) are neither good nor bad. We know, for instance, that some people are innately more likely to be violent than other people, and we know that this is primarily the result of testosterone levels, but would we argue that merely because person X has a genetic tendency toward violence that the resulting behavior shouldn't be prevented or the person shouldn't be punished? I'm not arguing that being gay is equal to being violent, of course, I'm just pointing out that there are many ways in which more or less innate behavior might still be legitimately seen as good or bad in a way that having green eyes cannot. So we should be careful not to overstate the "if there's a genetic component to this, it's automatically immune to criticism." I do not, of course, think being gay warrants any criticism at all, but that argument has to be made on moral grounds, not based on whether or not it is "innate."
I have little doubt that the vast majority of the time sexual orientation is something we are born with, or something that is so deeply set at such an early age that it is both absurd and traumatic to attempt to change. But even if it is 100% a choice, I don't think that changes the legal realities at all; I'm still entirely for everything I would otherwise be for in terms of gay rights and equality. I don't think that the genetics argument changes the moral conclusion at all.
I also do recognize that there isn't a simple line to draw between what kind of anti-gay speech is acceptable and what is not, especially in schools, but I do think this court is answering the question in the right manner by making a distinction between speech that expresses a general opinion and speech that targets a specific person. We may argue forever over where exactly that line is drawn, but I don't think the alternative - that no student may ever express any notion of believing that homosexuality is wrong or sinful - is a good one at all. Sometimes we just have to make tough judgment calls on these matters.
Posted by: Ed Brayton | April 28, 2008 3:54 PM
Spot on, Ed. I also fully recognize that homosexuality is at least partly genetically or biologically determined. But even it it wasn't, so what? Being an adherent of a certain religion is 100% choice, yet the very same people who denigrate homosexuality also are primarily the ones who demand respect (both mundane and state-sponsored) for their own religious beliefs. It is apparent to me that labeling homosexuality as a choice is more often than not simply a cop out for bigotry.
Posted by: Sadie Morrison | April 28, 2008 4:26 PM
At my high school (1972-1999) no slogans, advertisements, or writing of any kind were allowed on clothes. We simply did not have time to be constantly arguing about where the line was or where it should be drawn. Wherever you draw the line, kids will ALWAYS push the envelope; it becomes a distracting game. When they have graduated from high school, then kids can be personally responsible for the consequences of the messages they wear. Did you ever wonder why so many minimum wage jobs require people to wear uniforms?
Posted by: Elizabeth | April 28, 2008 7:02 PM
"Did you ever wonder why so many minimum wage jobs require people to wear uniforms?"
And high-paying jobs don't dictate how people dress?
Posted by: Bill in NC | April 28, 2008 8:03 PM
Personally, I think that it's an argument for school uniforms.
Posted by: MH | April 29, 2008 8:08 AM
I think I agree with the decision, but some comments...
It really is a stupid tshirt...like you can tell someone not to be gay.
It'd be like telling someone not to be short (if we want to take the race part out of this argument)
I think those that think being gay is a choice are those that actually made the choice to suppress that part of them...cause I don't remember making the choice to be hetero.
Posted by: BAllanJ | April 29, 2008 8:48 AM
Ed said:
"I'm just pointing out that there are many ways in which more or less innate behavior might still be legitimately seen as good or bad in a way that having green eyes cannot"
Obviously, some in society view homosexuality as bad, but courts do not.
But how is it "legitimate" to see homosexual behavior as bad? If it is unconstitutional to discriminate against religious preference, how can it be constitutional to discriminate against sexual preference?
When is sexual preference going to be added to the list of constitutionally protected groups?
Posted by: Gingerbaker | April 29, 2008 9:11 AM
Gingerbaker, you conflate two very different concepts to create a false argument. Seeing something as "bad" is nowhere near legally "discriminating" against it.
Yes, it's unconstitutional to discriminate against someone based on their religion. But that doesn't you can't think their religious beliefs are a bad thing.
I also would like sexual orientation (rather than the much weaker "preference") constitutionally protected from discrimination, but that has no bearing on whether a person can legitimately see homosexuality as a bad thing.
In summary: believing a person is bad does not equal legal discrimination against them.
Posted by: James Hanley | April 29, 2008 9:38 AM
Being an adherent of a religion is not, alas, a 100% choice affair. (Or else, the various religions would be evenly spread throughout the world, instead of forming blocks. The sight of all those religions, a lot of which pretend to absolutism, which is disproven by their very geographical repartition, should be a sufficient argument to renounce at least anything more specific than vague theism).
So it might acually be slightly unlawful to criticize too harshly the poor fundies: after all, it's not their fault, the majority of them suffered meme abuse during childhood... (on the contrary, the born-again have absolutely no excuse, so it's ok to say that they are the scum of the earth).
Posted by: Jérôme ^ | April 29, 2008 11:34 AM
James, you are reading my post incorrectly.
My first sentence stated that some object to homosexuality as "bad". But the discussion, at least as I saw it, was predicated about whether discrimination against homosexuality could be equated to discrimination of race. Ed argued that innateness itself was not always a good comparator, because a trait like sexual preference could be legitimately considered good or bad, while eye or skin color had no such connotations. (How quickly we forget that the wrong skin color was, indeed, interpreted as bad, inferior, morally suspect, as second-class in this country.)
Ed argued that genetic innateness could generate certain behaviors and desires which could "legitimately" be interpreted as negative outcomes. As he pointed out, this could be true for violent tendencies. ( lest we forget the negative outcomes of mixing the bloods of different races through marriage).
I questioned how homosexuality could legitimately be seen as having a negative outcome. I also stated that I do not think that the courts have concluded this is so, either. I'm sure that is arguable, but I think that most courts have simply said that it is a local issue of morality. Or they have protected it on a local basis.
But why should sexual orientation not be as worthy of protection as much as race or religious preference? If it is completely innate, then it is like skin color. If it is a mere preference, then how is it different from religious preference?
In summary: just because believing someone is bad, doesn't mean that discrimination against them should be allowed. ;)
Has sexual orientation even been formally presented as an addition to Federal antidiscrimination guidelines?
Posted by: Gingerbaker | April 30, 2008 10:44 AM