American Flag Shirt Case Heads to U.S. Supreme Court

Today, the American Freedom Law Center asked the Supreme Court to reverse a lower court decision upholding a school district’s ban on the wearing of American flag shirts on a high school campus on Cinco de Mayo fearing that Mexican students might respond violently.  You can read more about the case here.

Earlier this year, the Ninth Circuit refused to rehear the case en banc (full court), prompting Circuit Judge O’Scannlain to write a scathing dissent, which was joined by two other Ninth Circuit judges, Judges Tallman and Bea.  The dissenting judges would have held that the reaction of other students to the student speaker is not a legitimate basis for suppressing the student’s speech absent a showing that the speech in question was outside the First Amendment’s protection.

In his dissent, Judge O’Scannlain stated, in relevant part:

“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.”

In doing so, the panel creates a split with the Seventh and Eleventh Circuits and permits the will of the mob to rule our schools.  For these reasons, I must respectfully dissent from our refusal to hear this case en banc.

AFLC’s petition asks the Supreme Court to decide whether the Ninth Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts on campus because other students might react negatively to the pro-America message, thereby incorporating a heckler’s veto into the free speech rights of students contrary to the Court’s precedent and the decisions of other United States courts of appeals.

AFLC Co-Founder and Senior Counsel Robert Muise, who argued the case before the Ninth Circuit, commented,

“One of the foundational First Amendment principles that the Ninth Circuit’s decision disregards is that government officials may not restrict speech based on listener reaction.  This is known as a ‘heckler’s veto.’  By permitting a heckler’s veto, the Ninth Circuit’s decision affirms a dangerous lesson by rewarding students who resort to disruption rather than reason as the default means of resolving disputes.”

On May 5, 2010, school officials at Live Oak High School in the Morgan Hill Unified School District, California prevented five students from wearing American flag shirts on campus because the officials did not want to offend “Mexican” students on “their day.”  That day, some students at the school were celebrating the Mexican holiday known as Cinco de Mayo.  School officials approved the Cinco de Mayo celebration, which was co-sponsored by M.E.Ch.A, a school-sanctioned student group.

While school officials claimed that they were concerned about racial tension and potential threats of violence in light of an altercation that occurred between “Mexican” and “Caucasian” students on campus during a 2009 Cinco de Mayo celebration, the officials nonetheless approved the 2010 Mexican celebration, demonstrating that their fear of violence was nothing short of a pretext.

Moreover, the following facts are undisputed: no classes were delayed or interrupted by the students’ attire; no incidents of violence occurred on campus that day; and prior to asking the students to change their shirts, school officials had heard no reports of actual disturbances being caused in relation to the flag shirt apparel.

The students wearing the American flag shirts had been on campus for over 3 hours when they were approached by an assistant principal and ordered to turn their shirts inside out.  When the students refused to disrespect the American flag, the school official directed them to the principal’s office where they were lectured on the importance of Cinco de Mayo and given the option of either removing their shirts or leaving school.  The students refused to remove the shirts, so they left school and then filed this civil rights lawsuit.

AFLC Co-Founder and Senior Counsel David Yerushalmi concluded,

“There is never a legitimate basis for banning the display of an American flag on an American public school campus.  And by incentivizing and rewarding violence as a legitimate response to unpopular speech, the Ninth Circuit’s decision undermines a bedrock principle of the First Amendment and provides a dangerous lesson in civics to our public school students.  The Supreme Court should grant review and reverse this terrible decision.”