Liberal Ninth Circuit Court rejects decades of precedent to undermine free speech

The Ninth Circuit Court of Appeals on Wednesday refused to consider a decision that allows school officials to censor the free and peaceful expression of students out of concern for how others might react to it.

The decision “undermined decades” of legal precedent to reinforce the power of bullies to threaten those who would speak their consciences, according to the ACLJ.

Flag ShirtThe case, Dariano v. Morgan Hill Unified School District, centers on a group of students who wore shirts featuring the American flag on Cinco de Mayo, a holiday celebrating the Mexican military victory over the French on May 5, 1862. Other students threatened the flag-wearers, and school officials forced students who refused to turn their shirts inside-out to go home.

In refusing the request for a hearing in front of the entire court, the Ninth Circuit affirmed the idea that the free speech rights of students depend upon the reaction of their hearers – thus empowering anyone willing to threaten or actually engage in violence to prevent any speech with which they disagree from occurring.

The Supreme Court has previously protected free speech in public schools, according to the report, unless the speech itself – not the response of listeners – causes a “substantial disruption.”

Writing in his dissent, Judge O’Scannlain noted these same principles:

The freedom of speech guaranteed by our Constitution is in greatest peril when the government may suppress speech simply because it is unpopular. For that reason, it is a foundational tenet of First Amendment law that the government cannot silence a speaker because of how an audience might react to the speech. It is this bedrock principle—known as the heckler’s veto doctrine—that the panel overlooks, condoning the suppression of free speech by some students because other students might have reacted violently.

ACLJ had noted similar concepts in an amicus, or friend of the court, brief it filed in the case:

In the public school context, while school officials possess authority to prevent substantial disruption of their school’s functions, that authority has its constitutional limits. This case, in fact, precisely demonstrates why schools cannot escape constitutional scrutiny even in the face of substantial disruption. The school officials’ actions in this case represent a perfect storm of unconstitutional action—by empowering a heckler’s veto through the use of viewpoint discrimination. School officials should not be permitted to single out and silence one side of a debate, while permitting the other side’s expression to continue without restriction, solely because the latter group of speakers threatened violence in reaction to the speech of the former. Such a decision empowers violence, incentivizes further disruption, and targets disfavored speech for punishment.

The Supreme Court has been known for striking down decisions by the San Francisco-based Ninth Circuit, generally considered to be the most liberal appellate court in the nation.

“One hopes the Supreme Court would grant certiorari, re-affirm its commitment to core First Amendment values, and reverse the Ninth Circuit,” the ACLJ wrote.

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