The American Flag: An Incitement to Violence?

The parents of students who were denied their constitutional rights have filed a petition to have their case heard before the United States Supreme Court.  The case is Dariano, et. al. vs. Morgan Hill Unified School District.  To bring everyone up to speed, this case involves the wearing of T-shirts by students that depicted the American flag.  So far, so good except that the students in question wore the T-shirts during the school’s celebration of Cinco de Mayo, a holiday celebrated by the growing Mexican-American population in the school district.  There was some limited violence the year before during a similar action and threats in 2010 when the incident at hand occurred.  Because of those threats, school administrators asked the students to remove the T-shirts, change, or turn them inside out.  They were offered the option of going home for the day without it counting against their attendance record.

The case went to the Ninth Circuit Court of Appeals which sided with school administrators under the assumption that they were acting in the best interests of the students in an attempt to prevent violence. They were condoning the so-called “heckler’s veto.”

This “veto” was first acknowledged and upheld in limited circumstances by the Court in 1951 when they upheld the arrest of a speaker if there was the imminent threat of violence.  In 1969, the term entered the Court’s lexicon when Justice Hugo Black stated that arresting demonstrators based on the potential violent reactions of bystanders would amount to a “heckler’s veto.”  Court jurisprudence in this area has been confusing.  Different circuits have interpreted this differently which may be a good recipe to get your case before the highest court.

A lot will depend upon a previous  case- Tinker vs. Des Moines School District- where the Court upheld in 1969 the right of students to wear black arm bands in protest of the Vietnam War.  Obviously, this was a clear cut victory for student Free Speech rights.  It should be noted that the Court upheld these rights in a particularly contentious period of American history and that there was violence or threats of violence in the context of many protests against the Vietnam War.

There is considerable disagreement among various courts as to how to enforce Tinker.  Some courts have upheld the wearing of T-shirts that say, “Be Happy, Not Gay” or others proclaiming that homosexuality and Islam are bad.  Conversely, other courts have disallowed the wearing of T-shirts that denounced Islam or, in one case, a Marilyn Manson shirt.

So why should this case be any different and what are its chances of actually being heard?  Given the confusion over Tinker and its interpretation, one would think there would be more cases like this.  However, as the small sampling of cases above illustrate, courts have had the opportunity to revisit the issue and efforts have failed.  Perhaps they did not feel they were the correct vehicle for this type of review, or perhaps the problem was solved outside the legal system and the case dropped.  Regardless, this case presents an opportunity to finally address the issue and with the introduction of some high powered amici briefing, it may just gain the notice of the Supreme Court.

Furthermore, when the full Ninth Circuit denied review en banc of the 3-judge panel, there was a sharply worded dissent from three Justices.  The forceful, strong wording was obviously designed to get the attention of the Supreme Court.  As I have noted on many occasions, one good way to get your case heard is to have a difference of opinion among different circuits.  Usually, if the differences are sharp enough, the Court is almost obliged to step in and provide uniformity.  And there is a circuit split.  The Seventh Circuit ruled in favor of the student in the “Be Happy, Not Gay” T-shirt incident alluded to earlier.  The Eleventh Circuit dismissed a school’s assertion that in order to maintain order they could reprimand a student for holding up their fist during the Pledge of Allegiance.

The lawyers for the students filed their appeal to the US Supreme Court in December and the Court granted the school district until February 19th to file a response.  Since they are holding their conference today, it will most likely come up for a conference vote next Friday- February 27th.  That following Monday, we may know whether they are taking the case or not, or they may relist until a later conference.  However, time is running out in this term as the March calendar is now full and April is filling up.

The actions by the Morgan Hill School District at Live Oak High School is indicative of a growing trend throughout America where the “powers that be” are restricting free speech or expression in the interest of maintaining order or “to protect the speaker.”  We see it on college campuses when they rescind invitations to “controversial” speakers.  When not resorting to this tactic, they then require “security fees” which happened at Boise State when a pro-gun rights advocate was scheduled to speak.  Recently, the Sixth Circuit correctly ruled that a community college could not ban students from passing out leaflets denouncing homosexuality.  The college initially refused the request on the assertion that the leaflets would likely offend students and lead to college campus disorder.  We see it in the ridiculous and onerous campus speech codes popping up all over the country mainly in response to directives from Washington DC.

Then there are the ultimate acts of a heckler’s veto that made news this year.  The first was the threats against Sony Pictures if they released the Seth Rogen film The Interview.  The other is the constant threats, sometimes carried out, by Muslims for anyone who depicts the prophet Mohammed in a cartoon.

It is difficult to prognosticate whether the Court will even accept this case for review.  While some view the Roberts Court of being particularly protective of Free Speech rights, this analysis is not absolute and the record is somewhat mixed. It may be true that schools have the right to maintain order and eliminate the threat of violence, should they do so if they violate a fundamental civil right?  It should be noted that none of the students were reprimanded or suffered any disciplinary action as a result of wearing these T-shirts.  Whether this figures into their reasoning to accept or deny this petition remains to be seen.  But, it is truly a sad day in America when wearing a picture of the American flag on one’s T-shirt is considered an incitement to violence and, therefore, must be banned.  And God forbid they do so on Cinco de Mayo or any other ethnic holiday.


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