Heckler's Veto FTW?

[DinoDoc]

Not safe to display American flag in American high school

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.

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?

Incidentally, a California statute, Cal. Educ. Code § 48950, seems to offer the flag-wearing students more protection than the First Amendment, under Tinker, provides:

(a) School districts operating one or more high schools … shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment ….

(d) This section does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected ….

(f) The Legislature finds and declares that free speech rights are subject to reasonable time, place, and manner regulations.

The “time, place, and manner regulations” provision doesn’t apply here, because the restriction here was justified with reference to the content of the expression (and the supposed harm that it might cause). Time, place and manner regulations must be unrelated to content, and focused instead on matters such as noise, blockage of hallways and other effects of speech that don’t stem from the message that the speech communicates. But apparently § 48950 wasn’t brought up in the 9th Circuit litigation.

Given that these sorts of racial tensions have recurred during more than one of the school’s Cinco de Mayo celebrations, why didn’t they simply stop celebrating the holiday? That’s not optimal either — if you can celebrate St. Patrick’s Day, in theory you can also celebrate Cinco de Mayo — but given that even the court seems to accept that the threats here are one-sided, it’d at least have the virtue of punishing the guilty parties.

 

[JollyRoger]

You'll have to pry my cheap Mexican beer from my cold, dead hands.

 

[Gucumatz]

If you like Mexican beer, try a Monterrey. Basically the Guatemalan imitation of Corona that's cheaper and with better taste. Or stick with a Gallo.

 

[bhsup]

Dateline - Ensenada, Baja California, Mexico

It has been a day of protest here in Ensenada on this December 7th. Student protests broke out today at the local high school over the audacity of the school to actually fly the Mexican flag on this day. The large immigrant population of United States citizens has swelled the high school population over the last several years, and today tensions reached a boiling point.

Student protest leader, Amber Freedom, speaking to her fellow expats, said, "It is not enough that they refuse to cater to us by speaking English, instead insisting on that ridiculous Spanish language! Now they insult us by flying their national flag on a day sacred to all Americans! Yes, I tell you, while a California school has to hide our glorious red, white, and blue so Mexican immigrants can celebrate the victory of the Mexican army over French forces, we here in Ensenada are subjected to the Mexican flag on this most sacred of American days, Pearl Harbor Remembrance Day!"

There has not yet been any violence reported, but school officials fear it is only a matter of time before the American expat students cross the line.

(Translation in spoiler graciously provided by Google Translate.)

Spoiler :

Dateline - Ensenada , Baja California, México

Ha sido una jornada de protesta aquí en Ensenada en este 7 de diciembre. Las protestas estudiantiles estallaron hoy en la escuela secundaria local sobre la audacia de la escuela a la realidad enarbolar la bandera de México en este día. La gran población de inmigrantes de ciudadanos de los Estados Unidos ha aumentado la población de la escuela secundaria en los últimos años , y hoy en día las tensiones llegado a un punto de ebullición.

Líder de la protesta estudiantil , Amber Libertad , dirigiéndose a sus compañeros expatriados , dijo: " No es suficiente que se niegan a atender a nosotros por hablar Inglés , en lugar de insistir en que la lengua española ridículo! Ahora nos insultan por que enarbolan su bandera nacional en una día sagrado para todos los americanos ! Sí , os digo, que si bien una escuela en California tiene que esconder nuestro glorioso rojo, blanco y azul para los inmigrantes mexicanos pueden celebrar la victoria del ejército mexicano sobre las fuerzas francesas , que aquí en Ensenada estamos sujetos a la bandera mexicana en este día más sagrado de América , Pearl Harbor Remembrance Day ! "

Todavía no ha habido ninguna denuncia de violencia , pero las autoridades escolares temen que es sólo cuestión de tiempo antes de que los estudiantes expatriados americanos cruzan la línea .

Spoiler :

Okay, I personally think it is rather stupid for any American, federal or state or local, government entity to officially celebrate a foreign national holiday, but whatever. Go ahead and celebrate. But to tell Americans they cannot wear the US flag on their shirt on this day and this day alone? No, that's utter BS.

 

[BvBPL]

If you like Mexican beer, try a Monterrey. Basically the Guatemalan imitation of Corona that's cheaper and with better taste. Or stick with a Gallo.

I'm a Dos Equis man, myself.

 

[DinoDoc]

You'll have to pry my cheap Mexican beer from my cold, dead hands.

The court is now saying that someone just has to threaten that and the government will force you to pour it out.

 

[JollyRoger]

Why should the school tolerate violations of the flag code? It should be an outright ban in regards to the United States flag.

 

[DinoDoc]

Why should the school tolerate violations of the flag code? It should be an outright ban in regards to the United States flag.

Why should the school tolerate celebrations of Cinco de Mayo if it stirs up threats of racial violence every year?

 

[Formaldehyde]

I'm sure many racists say the same thing about MLK day.

Speaking of which, would this have been perceived any differently if they were wearing Confederate battle flags on MLK day? Or if a Japanese-American student had worn the Japanese battle flag on December 7th?

 

[DinoDoc]

I'm sure many racists say the same thing about MLK day.

Pretty sure the racists here are the people threatening violence over the sight of an American flag. I'm merely following the schools logic to its inevitable conclusion. These sorts of racial tensions have recurred during more than one of the school’s Cinco de Mayo celebrations, if we accept the school's argument about why it stifled the free expression of the student's in question why then does the school celebrate Cinco de Mayo at all if it serves to compromise the school's mission of instruction and impairs its ability to ensure student safety?

 

[Formaldehyde]

Pretty sure the white jocks who did it to mock Cinco de Mayo are actually the ones who feel superior to the Mexican-Americans.

 

[DinoDoc]

Pretty sure the white jocks who did it to mock Cinco de Mayo are actually the ones who feel superior to the Mexican-Americans.

They weren't the ones threatening violence. What you're supporting is a Heckler's Veto and a horrible lesson to teach our children. 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.

 

[bhsup]

Well to be fair, Dino, Forma sees -every- issue as a race issue even if it is clearly just one of love of country being trampled on. Given those particular goggles being worn, you can kinda see where he's coming from. Course, if he'd just take off the goggles...

 

[Formaldehyde]

Yeah. There certainly wasn't any overt racism involved here.

 

[DinoDoc]

Yeah. There certainly wasn't any overt racism involved here.

I love how you appear to be avoiding the real issue in favor of a racialist argument.

 

[Formaldehyde]

I love how you think an opinion piece by an attorney who is being disingenuous actually supports the childish acts of a handful of quite obvious racist "thugs".

 

[DinoDoc]

I love how you think an opinion piece by an attorney who is deliberately being disingenuous actually supports the childish acts of a handful of quite obvious racists.

You're the one who's supporting racist thuggery in the cause of silencing speech and a craven school that taught them that such actions work.

 

[Formaldehyde]

Nope. I'm supporting the school district and their right to maintain order and peace. You are the being an advocate of the racist "thugs" here, not me.

This clearly isn't primarily a First Amendment issue. It is a quite proper and legitimate control of troublemakers by school authorities issue. Again, they would have done the very same thing with students wearing Confederate battle flags on MLK Day. And rightfully so.

Patriotism aside, a South Bay high school worried about campus safety was within its legal rights to order a group of students wearing American-flag adorned shirts to turn them inside out during a 2010 Cinco de Mayo celebration, a federal appeals court ruled Thursday.

In a unanimous, three-judge decision, the 9th U.S. Circuit Court of Appeals sided with the Morgan Hill Unified School District, which had argued that a history of problems on the Mexican holiday justified the Live Oak High School administrators' decision to act against the flag-wearing students.

"Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence," 9th Circuit Judge M. Margaret McKeown wrote for the panel. "(The past events) made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real."

 

[DinoDoc]

Nope. I'm supporting the school district and their right to maintain order and peace.

Which brings us back to the inevitable conclusion of the District's line of thought in this case, if as the district asserts that it has been the source of racialist tensions many times in the past and they view it as their duty to maintain peace within the school why continue to celebrate Cinco de Mayo? It would at least have the value of punishing the parties guilty of violence in this case.

 

[Formaldehyde]

That seems to only be the "inevitable conclusion" with those who are supporting the real racists here. The community is largely Mexican-American. It makes perfect sense for the school to allow them to celebrate this event without having to endure hateful behavior from the usual suspects.

Again, would you say the same if there was similar behavior surrounding MLK Day or Black History Month?