Free Speech and Tee Shirts

On April 20th, the Ninth Circuit Court of Appeals issued an opinion in a case entitled Harper v Poway Unified School Distinct et al. This case involved a high school student named Harper who sought an injunction against the school to allow him to wear a tee shirt that said “Be ashamed, our school embraced what God has condemned” on one side, and “Homosexuality is shameful” on the other side. In an opinion by left wing Ninth Circuit Court Justice Reinhardt, the Ninth Circuit upheld the district court’s decision not to grant an injunction in Harper’s favor.

The case arose out of a context. In 2003 and 2004, Harper’s high school had allowed the Gay-Straight Alliance to hold a “day of silence” protesting in favor of homosexuality and against those who believe homosexuality is wrong. Harper wore the tee shirt in response to the school’s apparent effort to condone homosexuality through the sanctioned demonstrations.

Somewhat to his credit, the principal of the school did have an extended discussion with Harper about the tee shirt rather than immediately throwing him off campus or suspending him. Nevertheless, the school district refused to back Harper’s free speech rights and the court likewise has denied Harper the opportunity to express his views about homosexuality and his school’s apparent choice to favor what was once thought unspeakable.

In justifying its opinion, the Ninth Circuit Court of Appeals relies upon the standards laid out by the Supreme Court of the United States for student speech issues in Tinker v Des Moines Independent Community School District 393 U.S. 503 (1969). Here it basically says that students don’t leave their free speech rights at the door when they enter school, but that there may be some reasons why a school may regulate student speech. “First, a school may regulate student speech that would impinge upon the rights of other students, Tinker, 393 U.S. at 509. Second, a school may prohibit student speech that would result in substantial disruption of or material interference with school activities. Ibid at 514.” Harper at page 17 of the slip opinion. Specific facts in Tinker involve students wearing black armbands in protest of the Viet Nam War at their school. The Supreme Court held that the school could not prevent the students wearing the armbands. That this is what Tinker is about is somewhat ironic when we look at the Ninth Circuit Court opinion in Harper. Certainly the wearing of black armbands in the 1960’s would have been highly offensive to a large portion of the students, especially those with parents in the Military or serving in Viet Nam. In addition, the kind of speech protected in Tinker was clearly political. Arguably, Harper’s speech was also part of a debate about public policy in the schools. The school’s sponsorship of the prior events in favor of the homosexual lifestyle certainly would create a forum for discussion unless it was legal for the school to discriminate between various speech based upon point of view. But what you must know is that the Supreme Court’s philosophy of free speech in the last 20 years or so specifically rejects viewpoint discrimination. Normally, that is the one thing a government entity must not do. Yet what did the Ninth Circuit decide in the Harper case?

The Ninth Circuit opinion might have been uncontroversial if it had simply said that debates over issues like homosexuality in the high school can be disruptive and that the school had a right to ban all speech about things like homosexuality provided that it did so without reference to content. However, the Ninth Circuit did not do that. Instead, the Ninth Circuit has created a new synthetic right: the right to be free from attacks while on school campuses that relate to characteristics such as race, religion or sexual orientation. The court stated, “Being secure involves not only freedom from physical assaults, but from psychological attacks that cause young people to question their self worth and their rightful place in society. The right to be let alone has been recognized by the Supreme Court of course as the most comprehensive of rights and the right most valued by civilized men. Hill v Colorado 503 U.S. 703, 716-717 (2000) quoting Olmstead v United States 277 U.S. 438, 478, (1928) (Brandeis Jay dissenting).” Ironically, of course, the days with protests in favor of the homosexual lifestyle were undoubtedly a psychological assault on the self worth and rightful place in society of those students from evangelical Christian backgrounds that believe that homosexual acts are sinful.

In the area of discrimination based on race, we have come to a social decision based upon moral principle. Because we are all human beings, it is wrong to disparage those people because of their genetic characteristics or heritage. All human beings are made in the image of God and entitled to dignity and worth. We have also decided that in the area of religion, even though there may be true and false religions, we will generally exercise civilized tolerance of one another in public places and not criticize or disparage religions with epitaphs, etc. However, this is not to say that we do not allow civilized speech or discourse about religion or proselytizing. Indeed, is the next step going to be that the Ninth Circuit will seek to allow the banning of any Christian jewelry, tee shirts, books, etc. on campuses because they “offend” people from other religions and people who engage in immoral conduct? But sexual orientation is also different from race and religion. Homosexuality is a form of conduct that is to be regarded as immoral and undesirable not only according to Christianity, but according to Orthodox Judaism, the natural law, and the most pure and orthodox forms of all the other major religions. Even the Dali Lama has made statements condemning homosexuality. By equating sexual orientation with race and religion, and by stating that comments about the morality of homosexual conduct are “attacks” on other students, the court is clearly making a substantive choice about the content of speech and is siding with the immoral side of the equation. What if the tee shirt had read “Stealing is shameful” or “Lying is shameful” or “Gossiping is shameful” or “Taking illegal drugs is shameful”? All of these statements would have undoubtedly been offensive engaged in those immoral activities. The school probably supports anti-drug tee shirts. Here the court argues that a moral judgment is actually abuse and intimidation of other students. It would have been an easier argument if the tee shirt actually was inflammatory and abusive. Instead, that statement made is rather mild. It would be difficult to come up with a kinder and gentler way to express the same information. Dissent in the Harper case by Justice Kozinski agrees that the court has entered into the dangerous area of endorsing viewpoint discrimination against certain types of speech.
The basic purposes of government identified in the scripture and validated by reason and common sense are to reward good and punish evil. Because of the inability of post-modern man to admit the existence of good and evil or to give an accurate account of which is which, the courts have attempted to maintain an approach toward free speech which remains neutral with respect to the content of speech neither rewarding good nor punishing evil, but declining to do either. But the Ninth Circuit opinion has now crossed over the line to punishing good just as the school’s action in supporting the days of silence effectively rewarded evil.