The Washington Post’s Volokh Conspiracy reports that the 9th Circuit has upheld the right of a California high school to forbid students from wearing t-shirts with American flags. “The court points out that the rights of students in public high schools are limited,” Eugene Volokh writes. “[I]f ‘school authorities [can reasonably] forecast substantial disruption of or material interference with school activities’ stemming from the speech.”
In this particular case, the students wearing American flag shirts were threatened with racial violence:
This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker’s “forecast substantial disruption” test, such a heckler’s veto is indeed allowed. …
Yet even if the judges are right, the situation in the school seems very bad. Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.
This is the 9th Circuit encouraging violence and threats of violence with a court decision that gives them what they want.
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