Thursday, April 20, 2006

"Sorry, your viewpoint is excluded from first amendment protection"

Via Volokh Conspiracy:

Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, it said "Homosexuality is Shameful." The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.

Volokh argues that:

Judge Reinhardt takes some unelaborated remarks by the Supreme Court about the First Amendment's not protecting student speech that "intrudes upon . . . the rights of other students," and fashions from them a constitutionally recognized right to be free from certain kinds of offensive viewpoints (not a right that is itself directly legally enforceable, but a right that the school may choose to assert as a justification for its viewpoint-based speech restrictions).

This is a very bad ruling, I think. It's a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It's an opening to a First Amendment limited by rights to be free from offensive viewpoints. It's a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.
I agree. Any stripping of First Amendment protections based on the offensive nature of the speech in question is dangerous, because it leaves open the possibility of revoking our freedom to say the very things that this freedom exists to protect: the things that are controversial.

UPDATE: I was just thinking about it, and just to let you know that this kind of speech suppression is common, I do remember a comparable incident at my high school. At one point during my junior year, the school had the usual "gay pride" week. Not too many people really cared, frankly, but there were signs posted everywhere about the GLBT Alliance and gay pride all over the place. As a bit of a reaction, one of my friends wore a home-made "straight pride" t-shirt to school. That's all it said: straight pride. But he was nevertheless forced to remove it because administrators disapproved. Nevermind the gay pride everywhere; openly embracing a majority viewpoint violated the school's dress code, which bars clothing with "offensive messages." (I never saw the kid with the "American by birth, AntiChrist by choice" shirt forced to remove his.) This type of thing does happen, and apparently the ninth circuit is okay with it.


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