9th Circuit Court: First Amendment Doesn’t Apply To Anti-Gay Message In Schools
Posted on April 20, 2006
Hat tip: Volokh Conspiracy
Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, “Be Ashamed, Our School Embraced What God Has Condemned,” and on the back, it said “Homosexuality is Shameful.” The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.
Harper’s speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation” — which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations — are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates “the rights of other students” by constituting a “verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development.”
So, according to 9th Circuit “logic” the Gay Straight Alliance, supported by the ACLU, are apparantly Constitutionally protected to encourage indoctrinating second graders with gay “tolerance”, any view expressed by a student from K to 12 does not have that same Constitutional protection. This is very disturbing and chilling.
Eugene Volokh agrees.
The Gay-Straight Alliance has a constitutional right to argue that homosexuality is quite proper, that same-sex marriages should be recognized, that discrimination based on sexual orientation should be banned, and that antigay bigotry is an abomination. But when the other side of this debate “about controversial issues” wants to express its views, which will often have to rest on the theory that homosexuality is wrong, sorry, apparently it’s not important to preserve student speech that expresses that view.
“[T]here is an equality of status in the field of ideas,” the Supreme Court has said. “Under the First Amendment there is no such thing as a false idea.” “The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” And yet according to Judge Reinhardt, the First Amendment itself discriminates against viewpoints that express hostility to minority races, religions, and sexual orientations.
Three things we ‘learn’ here from the 9th Circus ruling: 1) there is a “right” to learn in this country, 2) you have a “right” to be free from “psychological attacks” and 3) if you argue successfully that you felt psychologically and physically threatened by someone expressing an opposing opinion to yours, you can successfully convince a US court to infringe on that person’s freedom of speech rights while being perfectly free to exercise your own.
The Alliance Defense Fund are stepping up to the plate.
Attorneys with the Alliance Defense Fund say they plan to appeal today’s ruling by two judges of the U.S. Court of Appeals for the 9th Circuit who upheld a high school’s decision to prohibit a student from expressing his views regarding homosexual behavior on a T-shirt.
“Students do not give up their First Amendment rights at the schoolhouse door,” said ADF Senior Legal Counsel Kevin Theriot. “This panel has upheld school censorship of student expression if it is the Christian view of homosexual behavior. They have essentially determined that student quotation of Scripture can be prohibited. This case will proceed at the district court level, but we intend to appeal today’s extremely poor ruling to the full 9th Circuit.”
ADF attorneys represent Poway High School student Chase Harper, who was forbidden by school officials from wearing a T-shirt expressing his religious point of view on homosexual behavior. A school administrator told Harper to “leave his faith in the car” when his faith might offend others (www.telladf.org/news/story.aspx?cid=2746).
The decision today by the two-judge majority of a three-judge 9th Circuit panel upholds a lower court’s denial of a motion by ADF attorneys that asked for Poway High School’s policy regarding the T-shirt to be immediately halted while the case moves forward.
The third judge, Circuit Judge Alex Kozinski, vigorously dissented: “I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning…. The fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law. It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future.”
The two-judge majority criticized Kozinski, suggesting that the majority could rely upon the motion pictures Brokeback Mountain or The Matthew Shepard Story “as evidence of the harmful effects of anti-gay harassment….”
“The majority implied that Brokeback Mountain is in, and the Bible is out. What’s really broken here is the majority’s approach to the First Amendment,” Theriot observed.
“The court has manufactured new law in the area of student speech in saying students cannot say anything that school officials deem ‘demeaning’ to another,” Theriot explained. “This is the same court that ruled that parental rights stop at the schoolhouse gate and that ‘God’ should be removed from the Pledge of Allegiance. This case is not over.”
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» Filed Under ACLU, Homosexual Agenda, News
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20 Responses to “9th Circuit Court: First Amendment Doesn’t Apply To Anti-Gay Message In Schools”
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Syndicate Me
Same judge that said students could no longer pledge to the flag and upheld the sex questionairre. Oh, this guy’s really on my good side. I think it’s time to impeach the traitor scum on the bench.
This is based on Tinker right? If kids can’t protest the vietnam war through clothes, they can’t protest gay rights.
Of course, tinker should be overturned, and kids should be free to wear nutty clothes to schools.
Yes gfactor, Tinker should be overturned…but even if it wasn’t…if you can’t wear clothing protesting gay rights, you’ll have to ban gay pride shirts too.
The Ninth Circuit Court would not know justice if they had it fed to them three meals a day seven days a week. Congress needs to put them in check and we need to encourage Congress to do so.
“Yes gfactor, Tinker should be overturned…but even if it wasn’t…if you can’t wear clothing protesting gay rights, you’ll have to ban gay pride shirts too.”
But its not a viewpoint neutral test. That’s the problem with Tinker. IIRC, the test is whether it causes a disruption. Kids should be able to cause disruptions in school.
You’re all pretending that there’s hypocrisy afoot here. Do you really think the flip side of gays arguing for equal treatment is a T-shirt that simply claims that “homosexuality is shameful”?
“This panel has upheld school censorship of student expression if it is the Christian view of homosexual behavior. They have essentially determined that student quotation of Scripture can be prohibited.”
Thank God. What most of you don’t understand or acknowledge is that the Christian view is inherently discriminatory. Waving around a 2,000-year-old book of faery tales in an attempt to justify abhorrent behavior may seem reasonable to brainwashed religious fanatics, but those in the real world understand otherwise, and can plainly see that faith-driven actions should not be given special dispensation in terms of distinguishing between free expression and basic, destructive bigotry.
I’d love to see a story about a kid wandering around his high school wearing a T-shirt with “Jesus was a commie freak” written on it. You’d all be screaming holy Hell if the kid were allowed to keep the shirt on, and would be singing the praises of any judge upholding its removal by administrators. You know, ’cause, Christians are persecuted in this country and all.
The simple truth is that people who write (so to speak) on this site aren’t interested in the law or even in dealing in reality; they’re interested in a dogma-based agenda.
The one with a brain (so to speak):
You do realize that the student wore the T-Shirt in protest to a “pro-gay” rally that was held in a PUBLIC school, right?
You must also realize, had there been a “pro-God” rally at the same school, atheists like yourself, would be screaming about how YOUR rights were infringed on because YOU had to watch something take place that YOU don’t agree with on public property.
Not to mention the fact that most, if not all, PUBLIC schools have been FORCED to allow gay lifestyle clubs, if the students wish, while BANNING Christian clubs that other students may want to form.
Wrong. Not agreeing with a lifestyle does not make me a “racist”, nor do I discriminate.
I love the way people like you call out “racist” at the drop of a hat just because we don’t want to teach our 5 year olds about homosexuality.
And you don’t understand, or realize, that the “gay agenda” (yes, there is one) IS discriminatory towards people who don’t embrace their lifestyle.
Gays getting EQUAL treatment is fine. But they don’t want equal treatment, they want special treatment. Christians just want equal treatment, yet you call it special treatment. See the irony? No?
As far as the T-shirt comment, I could understand if it said something like “gays deserve to die” or something like that, but it doesn’t.
You probably wouldn’t have a problem with the same slogan turned against Christians “Christianity is shameful”. You’d probably argue freedom of expression, or freedom of speech.
Yeah, you probably would.
First of all, I’ve seen plenty of kids, in my daughters school, wearing shirts with statements against religion or promoting violence.
Secondly, the shirt we’re discussing didn’t say “Gays are commie freaks”, so your point is, well… pointless.
That’s most truthful statement in your post.
The one with a brain: In all of the banning of offensive material, did you ever stop to think that T-shirts with a pro-gay message offends us? It seems that the government only wants to ban the message that is against gays and other religions. But the anti-Christian messages are allowed to continue on because they freely express a person’s viewpoint. If you want to ban everything, be my guest. But don’t just ban part of the viewpoint.
“You do realize that the student wore the T-Shirt in protest to a ‘pro-gay’ rally that was held in a PUBLIC school, right?
You must also realize, had there been a ‘pro-God’ rally at the same school, atheists like yourself, would be screaming about how YOUR rights were infringed on because YOU had to watch something take place that YOU don’t agree with on public property.”
Your BS-to-word ratio is impressive.
First of all, I din’t identify myself as an atheist; as much as it surely bothers you, there are other religions besides Christianity. Second, there’s nothing unconstitutional about a pro-gay rally; the fact that you’re anti-gay doesn’t entitle you to singularly expunge legal activities, any more than the fact that I despise low-wattage wingnuts entitles me to have this Web site dismantled. Third, a pro-God rally, if sectarian, is implicitly but expressly forbidden by numerous Supreme Court decisions (and such a thing wouldn’t bother me; I might skip it or mock it, but wouldn’t be whining about my rights being violated.)
“I love the way people like you call out ‘racist’ at the drop of a hat just because we don’t want to teach our 5 year olds about homosexuality.”
So now homosexuals constitute a distinct race? Are you just having a bad brain day or are you always this addled?
“And you don’t understand, or realize, that the ‘gay agenda’ (yes, there is one) IS discriminatory towards people who don’t embrace their lifestyle.”
A gay agenda, eh? Do tell. I’m not gay, so maybe I’m uninformed about this agenda — should I fear conversion to their “race”? And does this agenda hold a candle to the thoroughly evil fundagelical agenda (shove creationism into schools, eradicate abortion and birth control, hold wailing-idiot-packed rallies challenging the right to die, interfering with potentially life-saving medical research and measures)? Somehow I doubt it.
“Gays getting EQUAL treatment is fine. But they don’t want equal treatment, they want special treatment. Christians just want equal treatment, yet you call it special treatment. See the irony? No?”
The only irony is that you simply underscore both the fact that you’re entirely ignorant about what gays want and in complete denial about the extent to which Christians whine when they aren’t afforded special status. News flash: Denying a group the right to impose its twisted will — one based on ancient superstition — on an entire nation is not persecution or marginalization. Watching fifth-degree hypocrites like you milk victimhood for all it’s worth is plain pathetic.
Stick to your guitar, dude. The Internet is chock full of mentally challenged yammerers, but it’s unusual to find such specimens taking such an active interest in politics. At least I thought so until stumbling into this place.
I should say that, before it’s pointed out, I do acknowledge that this shirt was in response to the “Day of Silence” rather than T-Shirts worn by homosexuals. My mistake. At the same time, however, schools should no more sponsor this event than they should a religious rally. If the gays can express their freedom of speech, so can the Christians. One is not more offensive than the other. It’s just that Christians are supposedly more offensive because there are supposedly more of them.
The One With A Brain
“A gay agenda, eh? Do tell.”
How about the fact that EVERY group has an agenda? Every agenda promotes theirs to the detriment of some others. The equality agenda is even detrimental and unequal– to those who believe in an inequality agenda. Is one more ‘correct’ than the other? Popular opinion says equality is the riteous path, but that too is nothing more than a moral judgement call.
I’ve got no problems with gays who just are. I don’t agree with the actions of homosexuals, but that’s their perogative, not mine. My problem is with the very vocal “you will ACCEPT what I do and LIKE it” crowd that annoys me. I personally do not like being told what to think. I say “I will accept what you do but do not like it.”
This somehow makes me a dangerous evil biggot out to kill all homosexuals in the popular minds of those vocal on the ‘left’ side of the issue. Apparently that I find the killing of anyone over a social issue such as this to be abhorrent is “just windowdressing” to try to hide some latent fear of homosexuals and a case of closet homosexuality and self-loathing for it. While I cannot say that is the view of all those on the left, that has just been my experience with what they will usually resort to in conversations I have had in the past.
You say thank God scripture cannot be quoted by a student in school. I say thank God the Christians don’t control the school policy, but damn the people who supress their voices. How is one to explain their moral judgement calls if they are not allowed to speak of the source of said call? As a Christian turned Athiest turned Christian again I can say that there is a certain level of persecution against Christian ideology in the public realm. I honestly think it stems from hundreds of years of Christians supressing others. People collectively remember that and as such try to supress those views out of fear it will happen again by even permitting it in the public realm. Just because they did it in the past does not justify doing it to them presently and in the future.
So what you’re saying is you wouldn’t disagree with me “mocking” a pro-gay rally? Most people that have your views on the issue would consider that a bad thing.
That’s what it seems, when those of you on the left cry discrimination on behalf of homosexuals.
No. But apparently you’re afraid of Christianity. Watch out or you might be converted to Christianity… Yeah you’re right there’s no agenda.
That’s why “no agenda” homosexuals all wore rainbow colored leis , just to make sure that everyone knew they were gay families, at the Whitehouse for the annual easter egg roll.
Not to mention the fact that they used their kids to push their “agenda” further by having them wear the leis. So if you don’t see the agenda that’s your problem.
Blah blah blah… Evil shmeeevil … You angry liberals will say anything to avoid being morally responsible.
What is evil about that? More medical research? Sure I agree with you on that.
So you won’t mind us denying the twisted will – based on the “gay gene” superstition – of homosexuals on an entire nation. I’m the hypocrite?
Your pathetic.
As far as sticking to my guitar and not politics, I plan on playing guitar for 20 more years and I’m sure by this little conversation with you, or lack of, I can slam you on any issue. Trolls like you are just a pain that we live with.
“That’s what it seems, when those of you on the left cry discrimination on behalf of homosexuals.”
Why? discrimination isn’t just on the basis of race. Lots of people exclude on other bases.
I finally found out what this gay agenda is all about. Here ya go: http://www.commonplacebook.com/humor/gay/agenda.shtm
“Gay agenda” has become one of my favorite phrases of late. I’ve said it before, and I’ll say it again: How dare homosexuals try to acquire the same rights that we straight people enjoy! What do they think this is, America?
(Shameless self-promotion: I recently drew up a list of phrases that need to be banned from political discussion, and naturally “gay agenda” is on the list. You can visit my blog to see the whole thing, and please add to it! Together, we can make this a more pleasant community.)
“So what you’re saying is you wouldn’t disagree with me “mocking” a pro-gay rally?”
Go ahead and mock the rally, but bear in mind that you’re comparing apples to ornages. Certain types of Christians are known for doggedly trying to convert people to their world view (ever heard the term “evangelical”?); gays have no such aims. And not only are Christians famous for attempting to control the private lives of others, but they do this on the basis of an assortment of unqualified fables. Give me one instance of gay people trying to use the goverment to control the behavior of straights or people who otherwise don’t share their point of view. ALL they want is EQUAL RIGHTS. What are you so afraid of, Bible-boy?
Your bigotry and basic lack of cognitive candlepower guarantees that all of the foregoing and its immutable truth will sail clean over (or through) your head, but no matter. Keep pretending that your desires (obliterate queerdom) mesg cleanly with reality so as to minimize cognitive dissonance.
“That’s what it seems [that gays are a race], when those of you on the left cry discrimination on behalf of homosexuals.”
So you admit it, then. I guess Christians are a separate race too? Where does that leave gay Christians? Can they just choose?
You might want to mix in an anthropology course sometime. By the way, I’ve never voted Democrat in my life.)
“…apparently you’re afraid of Christianity. Watch out or you might be converted to Christianity… Yeah you’re right there’s no agenda.”
I’ll accept Jeebus as my lord and savior when the temperatue in Hades drops below 32 degrees Farhenheit. See, I have this thing — I prefer my idols and heroes to be alive. Makes conversation easier.
“…“no agenda” homosexuals all wore rainbow colored leis , just to make sure that everyone knew they were gay families, at the Whitehouse for the annual easter egg roll.”
They did? The horrors! I bet everyone was traumatized.
You honestly think gays wearing something that proclaims their identity constitutes an “agenda”? Well, I guess on this blog we can just define words however we like; it just requires reaching a certain distance up our own posteriors. Neat!
I see a ton of “Jesus Saves!” bumper stickers and their relatives. I guess all of these Christians have an agenda everyone else need fear and try to suppress? Mudbrain.
“Blah blah blah…”
Actually, this is eerily similar to how your entire post reads.
“So you won’t mind us denying the twisted will – based on the “gay gene” superstition – of homosexuals on an entire nation. I’m the hypocrite?
Your pathetic.”
Funny thing: Gays aren’t the ones running around claiming that their DNA is solely responsible for their sexuality. Fact it, be it through nature or nurture, some people are queer. Root causes don’t matter.
On the other hand, ALL of Christianity is predicated on a myth. No Adam and Eve, no original sin, no need for salvation, no need for Jesus, no Resurrection, no End Times, boom.
In other words, your attempt to create an analogy was a dismal failure.
“…I’m sure by this little conversation with you, or lack of, I can slam you on any issue.”
I hate chat-room speak, but when I read this it was a bona fide LOL moment. Friend, start by learning the difference between the possessive “your” and the contraction “you’re.” Then you can think about ditching the training wheels.
And I’m no troll. I’ve spoken to the issues here. It would be frighteningly easy to troll the place, but would a simple muckraker waste so much verbiage?
We don’t disagree here.
I never said let’s obliterate anything. sheesh. Just because I don’t agree with it and want to keep gay marches from happening at public schools, doesn’t mean that I want to “obliterate” gay people. (and yes, english major, I used two negatives, sue me).
And I’ll accept that homosexuallity is normal, or natural, when they start handing out bibles in hell.
Yes. It’s called being saved. You should try it sometime. It takes angry little boys, like you, and makes them happy.
That, my friend, is why they call it “faith”.
“You’re” correct. I was in a hurry to get to work… Sorry I didn’t use “grammer check”. I love training wheels….
I agree that we disagree.
gitardood,
You are bantering with “The one with a brain” who has yet to find their “Haldol” and still fancies themselves a “Beaming Visionary”.
He/she did remember to refrain from profanity however… I’m impressed.
LOL It’s all in good fun.
The One With The Brain: Holding a Pro-God rally is just as much an issue of free speech as it is free exercise of religion. If the gays did not have an agenda, there wouldn’t be pro-gay rallies. In any event, whether Christian or no, anti-gay t-shirts are just as Constitutional as pro-gay t-shirts. One does not have to be a Christian to be anti-queer. There is no right to not be offended in our Constitution. You’ll have to show me in our law where some groups have free speech and some don’t.
“You are bantering with “The one with a brain” who has yet to find their “Haldol” and still fancies themselves a “Beaming Visionary”.”
Give he/she credit Lobo. They don’t give up easy.