Volokh on an ACLU Brief

Prof. Volokh has a post about a particularly good brief in a student free speech case, filed by the ACLU of Southern California and partly written by a former student of his. The case involves a student who wrote two opinion pieces for a school newspaper, one of which a "expressed unfavorable opinions about Latino immigrants" and the other of which "repeated numerous unflattering racial stereotypes in support of an argument against affirmative action." The ACLU filed a brief defending the student's free speech rights despite the fact that they are both pro-immigration and pro-affirmative action. That's what true civil libertarians do, defend the expression of even those ideas that they find wrong or offensive.

But this makes me curious about something. Did the ACLU file any briefs in Harper v Poway, the 9th circuit case involving the student wearing a t-shirt saying "homosexuality is shameful"? Here is a statement from Volokh's post:

"California law does not permit school districts to censor student speech simply to avoid controversy or because the speech is unpopular or even offensive," said ACLU/SC staff attorney Christine P. Sun. "Instead of stifling debate over controversial topics, school officials should support and encourage students to consider ideas that are different from their own."

If one is going to assert such a principle - and I fully support that principle - then it must also apply in Harper, right? If anyone can find out if the ACLU filed any briefs in that case and where they can be found, I would appreciate it. I will also note that in 2004, the ACLU sued a school in Missouri for prohibiting a student from wearing a pro-gay t-shirt. If they filed a brief in Harper, I certainly hope it was on behalf of the student.

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I tried searching LexisNexis's case history (man, this thing is useful), but came up empty. I did a news search for Harper and Poway and civil and dug up this quote from an article in The San Diego Union-Tribune.

Jordan Budd, legal director for the American Civil Liberties Union in San Diego, said Harper's case may have merit. "The school district is not empowered to censor based on what they deem inflammatory, it has to be based on a constitutional standard."

As long as Chase's T-shirt did not substantially disrupt activities, he had a right to express his political or religious beliefs, said Budd. He said the T-shirt could not be construed as harassment because harassment has to be directed against a particular individual.

Not exactly a brief, but it's a start. I'll try another database.

Man, college library subscriptions are AWESOME.

By FishyFred (not verified) on 29 Aug 2006 #permalink

That's good enough for me at this point. I'm glad to see them saying the same thing in both cases. One can't expect them to file a brief in every possible case. Having filed briefs in Federal court, I can tell you that it's quite a process to go through.

Just a question, does is the newspaper in the first case published by the school? If so there are a few legal issues here that might make it not so much of an open and shut 1st amendment case. First, depending on local laws, school board policy, etc., the newspaper may not only be allowed to censor what the students want published in it, it may be obligated to do so. Depending on how the newspaper is organized, if it is chartered like a club, etc., it may very well have a constitution/charter that gives it complete power to censor as the administration sees fit.

I don't know, I'm just pointing out a possible situation that the folks looking at the legal precedent may not even be aware of.

By dogmeatIB (not verified) on 29 Aug 2006 #permalink

As a former resident of Poway, this case had some merit. I do unabashadly support the rights of two people who are committed to each other to marry and raise a family together no matter the sex. But we as a society must allow, if we are truly committed to free speach, the most hateful, vile, vindicive crap out of Osahma Binladin's mouth to be shouted from the roof tops with out hurting or quieting the voice. On the other hand, that student did have to bear the brunt of some cold shouldering from fellow students. Actions have consequences, and so do words. Free speech is just that.