Earlier this week a foreign-born college student was arrested for posting threats to kill President Bush. As I blogged here, a number of rightie bloggers immediately jumped to the conclusion that the student was a “liberal” (in fact, the news story didn’t identify the student’s political orientation) and predicted that liberals would jump to the defense of the accused student’s free speech rights, because that’s what liberals “always” do.
When the predicted liberal tide of outrage against the student’s arrest didn’t materialize, this guy wrote, “Well of course you’re not going to openly after we preemptively accuse you of it.” Well of course, he couldn’t possibly be mistaken about what “liberals” always do, huh? (Off topic, but this post by the same blogger reveals a certain, um, confusion about what liberals actually believe.)
In fact, long-established case law says that speech inciting violence — the “clear and present danger” test — is not protected by the First Amendment. If the student clearly was seriously attempting to incite presidential assassination and not just joking (I haven’t seen what he wrote), then he’s going to have a hard time defending himself on First Amendment grounds.
Also earlier this week, Glenn Greenwald commented on the First Amendment rights of journalists who report on something the government is doing secretly that appears to be illegal. In this case, a conservative ranted that publishing a news story “against the wishes of the president” amounted to treason.
This confusion could be resolved, I believe, by reassuring the ranter that this is still the United States of America and we have not, in fact, been annexed by North Korea. Not yet, anyway.
Different day, different story: Some not-liberal bloggers are complaining that the First Amendment rights of high school students were violated — Eugene Volokh wrote,
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.
Harper’s speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation” — which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations — are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates “the rights of other students” by constituting a “verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development.”
You can read the majority decision in Harper v. Poway Unified School Dist. here. If you read it you might notice what Volokh left out — prior incidents of physical altercation in the school caused by gay-baiting. From the decision:
[Assistant Principal] Antrim believed that Harper’s shirt “was inflammatory under the circumstances and could cause disruption in the educational setting.†Like LeMaster, she also recalled the altercations that had arisen as a result of anti-homosexual speech one year prior. According to her affidavit, she “discussed [with Harper] ways that he and students of his faith could bring a positive light onto this issue without the condemnation that he displayed on his shirt.†Harper was informed that if he removed the shirt he could return to class.
When Harper again refused to remove his shirt, the Principal, Scott Fisher, spoke with him, explaining his concern that the shirt was “inflammatory†and that it was the School’s “intent to avoid physical conflict on campus.â€
Harper actually demanded that he be suspended; the Principal refused to do that, and instead just detained the high schooler in his office the remainder of the day to keep him out of trouble.
Harper sued, and the district court concluded that “balancing the needs of the School to keep all their students safe coupled with the foreseeable vision that other students may feel free to exhibit these types of expressions that would interfere with the work of the school and violate the rights of others against [Harper’s] interests does not tip the scales sharply in [Harper’s] favor.â€
The judges went on to cite prior case law, such as Tinker v. Des Moines School District 393 U.S. 503 (1969) and Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986). Both cases deal with speech that disrupted school discipline. The primary issue was not, as Volokh suggested, speech that hurt people’s self-esteem, but speech that was causing students to become unruly and engage in shoving matches in the hall. The title of Volokh’s post — “Sorry, Your Viewpoint is Excluded from First Amendment Protection” — is, IMO, fundamentally dishonest, as is this post by another blogger, which whines that the school only banned the T-shirt because it was anti-gay.
In the past schools have banned all sorts of “speech,” including tattoos and gang colors, because the “speech” was causing discipline problems. A couple of weeks ago Volokh commented on a California school district that banned flags and patriotic clothing, U.S. and Mexican, because the students were using the symbols to taunt each other. The school said the ban was temporary; I take it some discipline problems erupted after passions were inflamed by the immigration marches. Volokh complained that California law says “high school districts can’t restrict display of the American or Mexican flags just on the theory that it might be used in a threatening (or ‘harass[ing],’ whatever exactly that means) way — it can only restrict such display that is itself threatening or harassing.” But I infer the school district was able to demonstrate there was a clear and present danger of threatening and harassing going on, not just hypothetical threatening and harassing.
I’m old enough to remember some damnfool arbitrary school clothing rules; my public school district wouldn’t let girls wear pants, for example. My high school principal pronounced a ban on T-shirts that said anything, including “Have a Nice Day” or “Visit Miami Beach.” Some situations are hard to call, I’m sure. Some principals are more authoritarian than they need to be. But it’s fairly obvious Harper Tyler was trying to incite something that wasn’t in the curriculum. (See also Jill at Feministe.)
Here’s some more context that may or may not muddy the waters — Tyler wore his T-shirt the day after the school’s Gay-Straight Alliance held a “day of silence.” Participating students wore duct tape over their mouths to symbolize the silencing effects of intolerance. They “spoke” in class through a designated representative. With the permission of the school, the Alliance had put up posters to raise awareness of harassment. A series of “incidents and altercations” had occurred when the Alliance held a day of silence the year before. So, this rightie blogger asks, if the school is so worried about “disruption” why would it allow the Gay-Straight Alliance to hold its protest against intolerance if it had incited disruption the year before?
This is not a question to dismiss out of hand. I’d like to see the posters and observe the students to get a better sense of what went down before I formed a firm opinion. If in fact the posters were not inflammatory and only conveyed the message “please be tolerant of us,” should they be censored because they might incite a violent reaction in bigoted students? In other words, in the interest of discipline, should speech requesting tolerance, and that is not insulting to another group, be treated the same as speech that is hateful and derogatory? If so, is that not giving in to the bullies?
On the other hand, if I were a teacher I’m not sure I’d put up with the tape-over-the-mouth stunt in classrooms if it got in the way of teaching. Maybe real teachers would disagree.
Seems to me the school has three choices. It can ban all displays of opinion on clothing and posters, including “Have a Nice Day.” It can exercise no restrictions and only intervene after fistfights have started. Or it can exercise critical judgment and restrict speech that seems to be intended to start fights. And in the case of the latter, judgments will be subjective and some people will always disagree with the call.
Frankly, I’m glad I’m not a school principal.
maha, great post on a really complicated issue. It doesn’t pay to respond in a reactionary manner until one has learned and thought through all the available facts.
I believe homophobic messages are on a par with racist and sexist messages, which haven’t been tolerated (in most public schools) for a few decades now. The 9th Circuit apparently agrees with that. However, I also think the duct tape protest would be a disruption, even though I agree with the sentiment.
I agree with your last word, too — glad I’m not a principal! I have nothing but admiration for the teachers and principals who have to make these calls every single school day.
Oh sure,, bring up the good stuff when I have a armful of parrot…nothing in the world stops my first amendment right to type like a parrot chasing my fingers on the keys(yikes)…nothing defines the “angry white male” like a cockatoo who isn’t getting ALL the attention,, But, I will be back later to comment on your outstanding(as always) post.(p.s. hide the cats)
Maha,
I read Rightwingednut’s complaint that he couldn’t find anything on Vikram Buddhi because the “liberal media” was hiding it. (He reminds me of some of the nuts I used to have to listen to at the public library where I previously worked). Anyway, I decided to look around and I found this extremely intriguing speculation. This presents a very interesting background, if true.
http://youthcurry.blogspot.com/
hide the cats
Miss Lucy says she’d be happy to relieve you of your bird problem. I’m not sure she’s ever seen a bird bigger than a pigeon, though.
I think it’s also true, to a certain extent, that the rights of students are not absolute. I’m sure this is a constant battle; I remember that my high school physics class had a lengthy discussion on free speech in school, and how many things were banned mostly for fear of causing disciplinary problems. (I can’t recall many instances of this while I was in school, although students were forced to change or go home for violating the dress code — violators were almost always girls whose clothes were deemed too revealing — or wearing obscene tee-shirts.) I guess we have to evaluate hate speech vs. other speech, too. A student who wore a racist tee-shirt to school would almost certainly be forced to change or sent home, and I’d put an anti-gay tee-shirt in the same category. The Day of Silence protest (a nationwide phenomenon, by the way, so not isolated to this school district) is a little more ambiguous.
Did you hear (I can’t remember if I read it here or somewhere else) about the people in Florida suing against tolerance programs at public universities? These people are suing for their right to hate gay people and be vocal about it, claiming that vocalizing their prejudice is a part of their religious expression. It’s kind of the same issue. These people aren’t just asking for the right to hate gays out loud, they’re arguing that the existance of programs to promote tolerance abridges their religious expression. Which is pretty absurd — to begin with, I don’t recall a “Thou Shalt Hate Gays” commandment. Should students forced to attend tolerance workshops be forbidden from wearing anti-gay tee-shirts? (Seems yes: they clearly would do such a thing with the intent to incite something, so there’d be a clear and present danger to the gay students in the same workshop… or so it seems to me anyway.)
I don’t know, it’s tricky. I wonder if these situations would even be less ambiguous if we were discussing racism instead of homophobia.
*That’s civics class, not physics class. Science on the brain.
Vikram’s family believes he has been framed?
http://timesofindia.indiatimes.com/articleshow/1498403.cms
Vikram’s father was framed and later proven innocent:
http://www.indiatogether.org/manushi/issue108/subbprof.htm
Sounds like a bit of a sensitive international incident.
I think the legal ruling is sound if based on school authorities rights to maintain discipline, but it surely is a troubling area. Ideally, of course, the kid would simply be ridiculed and ostracized for wearing such a t-shirt and one would hope that the same would apply at the college level. At the same time the Nazis get to march in Skokie and I personally have a problem with the idea of “hate crimes”. Don’t get me wrong, I think anyone who threatens or assaults another human being is guilty of a crime and should be punished, but to enhance the crime because the motivation for the threat or assault or whatever, was the person’s skin color, sexual orientation, religious beliefs or some other category seems like a “thought” crime to me. If I slug a guy because I hate the fact that my wife thinks he’s sexy, I get the time for assault and thats it. If I slug the guy because he is gay, I do the same time plus an enhancer. That is a little like going to jail because I think about a world without Dumbya as president. I guess where I am going with this is that the non liberal blogger was not really in left field in my opinion. I think he or she was wrong and the 9th Circuit was right, but I might well have come down differently a long, long time ago when my high school banned “Stop the War” t-shirts which certainly had the potential to incite disturbances–that is why we wanted to wear them. At the time I certainly thought my constituional rights were being infringed.
Remember when kids went to school to LEARN ?…..
I think Erin took the wind out of my sails somewhat by asking the question which I planned to ask….What if we , just for the sake of this discussion , replace the words on Tyler’s shirt with words of racism instead of just plain homophobia?Then would it be ok?
In my high school(after private school with the “no pants rule,grrrrr), as I recall, we were not allowed to wear any shirts with words printed on them except for school logo.I couldn’t wear a Led zepplin tee shirt , so I was not pleased by it..in my day no one wanted to wear shirts that were about hate, how sad we have reached that day now…at a time when we claim we are such a “christian society”….how educational this situation is indeed.
This brings up the story of fred phelps “church” from kansas.This error in breeding sends his group to the funerals of our local troops to stand outside with signs that say”God hates fags” … their claim, as they shout at the parents and wives of our dead troops trying to bury their loved one, is that they are dead because God is punishing America for “tolerating” homosexuals…
These people claim a first amendment right to stand outside of funerals of our troops and yell terrible things at the greiving families, like:” You deserved to have your son killed , it’s your fault for tolerating homosexuals in America !” …last week one accused the mother of a dead troop of “flipping off God” and “having the nerve to cry about it when God punished her family”…….
Gov.Vilsak, a dem, who was in Iraq, was forced to sign a bill make it illegal to protest at funerals…Still they came,, they were met by the “patriot riders” a ever growing group a big burly biker dudes, who stand in front of the protestors and shield them from the families view(who also could have been arrested IMHO under the bill vilsak signed)….
Phelps group was on the 5 oclock news, saying they planned to challenge the bill in court, they stood down the street from the funeral holding their “God hates fags” sign Swearing Bush’s court would deliver them….
I was told by a judge, as a minor I didn’t have rights.I couldn’t petition the court without an adult..I wonder if these kids are not being used as pawns in their parents “culture war”…
And one more thing..aren’t parents suppose to be raising kids who learn to fit in to society?There are going to be all kinds of different people these kids encounter in adulthood and some they just won’t ever like,and they have to learn to live in this world beside them..they are not bush, regime change is not an option..how are they learning to get along in the world ?
Take this all one step further…would it be ok for “grown ups” to wear this shirt in their workplace?My shirt would still be boring by todays standard,,, all I hate is liver and peas.
Take this all one step further…would it be ok for “grown ups†to wear this shirt in their workplace?
Not anywhere I’ve ever worked.
Maha, this happened in my hometown. My hometown paper, jconline.com, has the articles written about the incident, but not the accompanying picture in yesterday’s paper with some of the text in the email. It called for “killing and raping” the “Republican Ayatollahs” and specifically named Bush to be killed and Laura Bush to be raped and killed, among the raping and killing of other so-called Republican ayatollahs, all in caps lock. I was skeptical at first, but understood why it is the authorities were alerted to the message. It parrots terrorist language too convincingly for comfort.
That said, who knows how serious he was or whether or not he was on a crazy rant like everyone’s been known to go on. I’ve been quoted many a time that if certain things would go on in this country, I’d take one for the team and head to the White House myself with a sawed off shotgun. Then again, it’s pretty obvious I am joking and/or totally not going to shoot the president, much less anyone else. With Buddhi, after seeing the message, it just wasn’t that obvious.
I’ll keep looking to see if I can reproduce the image.
Shit. I totally made this comment on the wrong post.
So sorry.
I can’t imagine the circumstances where it would be permissible to wear a racist T-shirt in a public school.
I agree that a lot of people still see homophobia as “ambiguous,” when they see racism as absolutely wrong. I got the impression the 9th Circuit decision refused to accept any ambiguity on the matter. No racist T-shirts, no anti-gay T-shirts.
When the kids get to college, though, all bets are off. Frats are notorious for creating T-shirts with images and slogans that are insulting to women, African Americans, gays, computer science majors, Democrats, you name it.
Lauren –
I think this post might be discussing two topics because Maha began it with the very thing you mentioned.
Did you happen to catch my Comment #3 here, where I had the link about who this young man might be?
Also, the two links in Comment #7 give more background as well.
Unless I’ve been posting to the wrong one, too??? Nobody has commented on them, so I wonder…
Homophobia is an intregral part of the Christian faith. We might condemn Fred Phelps for being a little over the top in his zeal to carry the Christian message forward,but every utterance he makes against homosexuallity is supported in scripture and is considered the infallable word of God. Both the New Testament and Old Testament are littered with references of homsexuality being an abomination to God. Rather than blaming to the messenger for being homophobic maybe we should examine the source of the message. The apostle Paul describes homosexuality as,” that which is unseemly”, which is true if viewed only as a physical expression geared toward procreation,but without knowledge or understanding it is also unseemly that the earth is round and not flat.
Here’s a lovely statement written by Col.Robert G. Ingersoll ( the great agnostic)—,.” the church has been a skeleton at the banquet of life”….Isn’t that neet?
Most schools publish a student manual at the beginning of each school year addressing this topic (the dress code that is). I think everyone would agree that is the duty of the school to provide an environment conducive to learning. An intimidating message such as the one worn on by this student appears to violate this premise. Therefore, I believe the the principal was not only within his rights to ask this student to remove the shirt, it was his duty.
In other words kid, take the freakin shirt off. I’m the principal and you’re the student. You don’t like it, you’re suspended. And guess what? – when you grow up and get a job, you’re boss is going to tell you what you can and cannot wear too as well as other rules you might not want to follow.
I happen to be a strong liberal – freedom of speech and all that – but c’mon. If Mr. Harper felt so strongly about the gay rights event, maybe he should have formed his own alliance and staged an event with the opposing message. If the school did not allow such an event, maybe that would have been the time to file his first amendment lawsuit. He might have had a better chance of winning. Too bad his parents didn’t give him this advice – but then again – they’re probably the ones that taught him his intolerance of others.
I admire the administrators at this school and wish that they had been in charge at my daughter’s school in the days after Columbine. A forum was held to address the concerns of the parents and students. I attended because my daughter had expressed nervousness about a group of students who wore trenchcoats to school every day (and continued to after the tragedy). I asked the superintendant if it was wise to allow this to continue. I kind of figured that maybe he would take the kids’ concerns into consideration since the purpose of the forum was to take the kids’ concerns into consideration. His reply – he couldn’t violate their rights and their freedom to express themselves. I suggested that maybe my daughter could wear her bikini to school. Reply – that would be a distraction. Go figure!
My elementary school principal,Sister Mary Perpetua, would never have allowed such behavior. Even though I’m quite sure she was against abortion, I’m also quite sure she would never have allowed a student to wear an anti abortion tee shirt to class. We wore uniforms, and were in school to learn, not practice politics.
How things have changed…
Debate has gone from thoughtful discussion to who can shout the loudest, and religion has turned from the prince of peace to the old Testament God of wrath.
Our president has said”When I talk about war, I’m really talkin’ ’bout peace”.
We’re on the verge of a global energy crisis, and our highways are clogged with fuel guzzling , single passenger vehicles.
America has lost its’ mind