Thursday, February 27, 2014

Dariano v. Morgan Hill USD (9th Cir. - Feb. 27, 2014)

At the height of our involvement in Vietnam, the United States Supreme Court held that high school students had a First Amendment right to protest the war by wearing black armbands in school.  This morning, the Ninth Circuit holds that students do indeed have that right.  Unless it hacks off others in the school who threaten to beat them up.  At which point, the students' right to free speech disappears and the students can be forced to take off the armbands.

Admittedly, the facts of today's case are slightly different.  But the principle is exactly the same.  It's not a black armband here, but rather an American flag.  Some students decided to wear clothing with American flags on them.  Not coincidentally, they did so on Cinco de Mayo.  You can probably figure out the basic gist of what the students were trying to say.

Not surprisingly, other students were not pleased at the content of this speech.  So threatened to beat up the (American) flag-displaying students.  At which point the school stepped in and forced the flag-wearing students to stop their speech.  The Ninth Circuit holds that's okay.  Since there was a real risk of violence, there was no First Amendment right to speak.

Although straightforward, Judge McKeown's opinion essentially ignores the hard part of the case, and nowhere discusses the problem of giving a "heckler's veto" to First Amendment rights.  It's pretty easy to see the systemic problem created by a rule that says:  "You have a right to speak until someone else doesn't like your speech and threatens violence."  Namely:  It encourages violence, or at least the threat of it.  That's especially likely in cases of, as here, unpopular speech.  If you don't like what someone's saying, threaten to beat them up.  At which point they no longer have the right to speak.

This is a thorny problem in First Amendment law.  It's also the real problem of adopting rules like the one Judge McKeown creates/applies here.  She's more than smart enough to realize this fact.  But rather than confront the issue head on, she instead simply ignores it.

Which is unfortunate.  I'd have liked to see her defend the rule.