Today’s Dariano v. Morgan Hill Unified School Dist. (9th Cir. Feb. 27, 2014) upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)  The court points out that the rights of students in public high schools are limited — under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. And on the facts of this case, the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption. There had been threats of racial violence aimed at students who wore such shirts the year before:  On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students. The groups exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting “USA.” A group of Mexican students had been walking around with the Mexican flag, and in response to the white students’ flag-raising, one Mexican student shouted “f*** them white boys, f*** them white boys.” When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.” Rodriguez removed the student from the area….  At least one party to this appeal, student M.D., wore American flag clothing to school on Cinco de Mayo 2009. M.D. was approached by a male student who, in the words of the district court, “shoved a Mexican flag at him and said something in Spanish expressing anger at [M.D.’s] clothing.  Indeed, something similar happened the day of the 2010 incident that led to the lawsuit. After the principal 2010 ordered the students to change their shirts (or to go home with an excused absence), the students got threats of violence:  In the aftermath of the students’ departure from school, they received numerous threats from other students. D.G. was threatened by text message on May 6, and the same afternoon, received a threatening phone call from a caller saying he was outside of D.G.’s home. D.M. and M.D. were likewise threatened with violence, and a student at Live Oak overheard a group of classmates saying that some gang members would come down from San Jose to “take care of” the students. Because of these threats, the students did not go to school on May 7.  The court therefore concluded that, under Tinker, the principal’s restriction of the students’ speech was permissible:  Here, both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real. We hold that school officials, namely Rodriguez, did not act unconstitutionally, under either the First Amendment or Article I, § 2(a) of the California Constitution, in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.  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.  The 9th Circuit decision may thus be a faithful application of Tinker, and it might be that Tinker sets forth the correct constitutional rule here. Schools have special responsibilities to educate their students and to protect them both against violence and against disruption of their educations. A school might thus have the discretion to decide that it will prevent disruption even at the cost of letting thugs suppress speech.  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.  And this is especially so because behavior that gets rewarded gets repeated. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?  This morning, the Ninth Circuit declined to rehear the case en banc (with an 11-judge panel, rather than just this three-judge panel). Judges O’Scannlain, Tallman, and Bea dissented from the decision; here’s an excerpt, though the whole opinion bears reading:  The freedom of speech guaranteed by our Constitution is in greatest peril when the government may suppress speech simply because it is unpopular. For that reason, it is a foundational tenet of First Amendment law that the government cannot silence a speaker because of how an audience might react to the speech. It is this bedrock principle — known as the heckler’s veto doctrine — that the panel overlooks, condoning the suppression of free speech by some students because other students might have reacted violently….  Rather than acting to protect the students who were peacefully expressing their views, Live Oak decided to suppress the speech of those students because other students might do them harm. Live Oak’s reaction to the possible violence against the student speakers, and the panel’s blessing of that reaction, sends a clear message to public school students: by threatening violence against those with whom you disagree, you can enlist the power of the State to silence them. This perverse incentive created by the panel’s opinion is precisely what the heckler’s veto doctrine seeks to avoid.  In this case, the disfavored speech was the display of an American flag. But let no one be fooled: by interpreting Tinker to permit the heckler’s veto, the panel opens the door to the suppression of any viewpoint opposed by a vocal and violent band of students. The next case might be a student wearing a shirt bearing the image of Che Guevara, or Martin Luther King, Jr., or Pope Francis. It might be a student wearing a President Obama “Hope” shirt, or a shirt exclaiming “Stand with Rand!” It might be a shirt proclaiming the shahada, or a shirt announcing “Christ is risen!” It might be any viewpoint imaginable, but whatever it is, it will be vulnerable to the rule of the mob. The demands of bullies will become school policy.  That is not the law.  The dissent argues that the decision is inconsistent with the views of the Seventh and Eleventh Circuits, and that Tinker is best interpreted as not allowing “heckler’s veto” arguments. I take it the students will be asking the Supreme Court to review the case, and there’s a decent chance (though still something of a longshot) that the Court will take it, given the dissent from denial of rehearing, and the different views taken by the different circuit opinions. It’s also possible that the Court will agree to hear the case together with last month’s Bible Believers case, which also upheld a speech restriction based on a “heckler’s veto,” though there involving speech in a traditional public forum rather than in a high school.  Thanks to Louis Bubala for the pointer.
When may the government implement a "heckler's veto" in public high schools, by suppressing speech because other students want to attack the speaker?