Supreme Court

If you don’t know much about First Amendment law, start with the Tinkers.

Siblings Mary Beth and John went all the way to the Supreme Court in 1969 to defend their right to wear black armbands to their public school, a silent protest against the Vietnam War. The majority opinion recognized that students – and their teachers – don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Though that precedent for the rights of students has been muddied by subsequent rulings, Tinker still carries substantial weight – which is why it’s so heartening to see the siblings return to the high court to demand speech rights in the face of the “heckler’s veto.”

They filed a friend-of-the-court brief in favor of California students who were told they couldn’t wear American flag-themed clothing on Cinco de Mayo because Hispanic students complained.

Their lawyers are the UCLA law professor and blogger Eugene Volokh and Bob Corn-Revere, a D.C. heavy-hitter who’s leading the Stand Up for Speech litigation project.

Keep your Manson T-shirts at home

The 9th U.S. Circuit Court of Appeals approved the school’s action, saying it wasn’t a First Amendment violation, sparking a severe rebuke from three judges who asked for a full-court rehearing.

Even aside from the circuit split – the 9th Circuit diverged from the 7th and 11th – it’s long past time for the Supreme Court to answer “the question of student political speech at school,” the siblings said:

The lack of guidance [about applying Tinker] has left lower courts in the dark about how Tinker should apply in elementary and secondary schools today. This case is an excellent vehicle to offer such further guidance that will provide much-needed clarity for judges, administrators, and students.

Many school speech cases involve speech that might potentially lead to a hostile, even violent, reaction. Tinker itself involved such speech. This case is thus within the core of the Tinker doctrine, and provides an opportunity to address how the First Amendment applies to such potentially provocative speech. Indeed the Ninth Circuit’s approval of a heckler’s veto in this case shows how far some courts have traveled from Tinker.

The siblings warn that students will get the idea that “threatening speakers is an effective way to suppress speech,” producing more threats and more suppression of speech beyond patriotic sentiments.

The brief amusingly lays out the convoluted interpretations of Tinker, where in some parts of the country students can wear T-shirts with anti-homosexual messages, while in others, they can’t wear Marilyn Manson T-shirts because that band “promote[d] destructive conduct and demoralizing values.”

You think Vietnam was polite disagreement?

And nothing has really changed since Tinker, the brief says – debate over Vietnam was “vehement” across the country, and the district judge who upheld the anti-armband policy warned that wearing armbands would “disturb the disciplined atmosphere required for any classroom.”

The Tinker house even got death threats:

One person telephoned the Tinkers’ home on Christmas Eve and said “the house would be blown up by morning.” … A woman called for Mary Beth, and when the young teen got on the line, said, “Is this Mary Beth? … I’m going to kill you.” … The Tinkers received other threatening telephone calls as well. They also received hate mail, and their house was vandalized with red paint.

The heckler’s veto was also attempted during the civil rights movement and in the expulsion of Jehovah’s Witness children who refused to salute the flag, the brief says:

In such an atmosphere, a school principal confronted with a wave of patriotic fervor might conclude that preventing potential disruption justifies forcing a few dissenters to profess love for flag and country. After all, if the Ninth Circuit is correct in holding that the need for order in the public schools trumps the heckler’s veto doctrine, why not dispense with the prohibition against compelled speech as well?

School officials have “some latitude” to maintain order and prevent physical confrontations, but not “absolute discretion,” the brief says:

The [9th Circuit] decision … undermines constitutional values by teaching law-abiding students that the peaceful must surrender their rights in the face of hostility from the violent. Nothing could be more antithetical to First Amendment principles, especially in view of recent events.

Hinting at the growing use of anonymous communications tools like Yik Yak, the brief says:

[Students] might be able to convey their threats indirectly or anonymously, thus facing little risk of punishment. And for this little risk, they would get a substantial reward, in the form of successfully shutting up the speech they dislike – a cheap exercise of power over others that is especially likely to appeal to some

It’s a powerful brief, so read the whole thing.

h/t Student Press Law Center

Greg Piper is an assistant editor at The College Fix. (@GregPiper)

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Tom H. Hastings teaches in the Conflict Resolution program at Portland State University. He also is the director of PeaceVoice, the website of which is probably what you’d expect: a massive conglomeration of race/class/gender articles.

Mr. Hastings has had it with gun violence, and, as such, wants the United States to ditch the Second Amendment.

Wisconsin Gazette.com reports:

This morning of Dec. 25, 2014, of the nine top stories from US Reuters, six were about shootings — four new ones and two about the national movement against shootings of citizens by police. This pandemic of sick violence, punctuated by mass killings of children, has gone on far, far too long. It is long past time to repeal the stupid Second Amendment.

The fate of the Second Amendment should have been sealed when the U.S. Supreme Court ruled in 2008 that past rulings by their predecessors were wrong, that in fact the amendment that provided for a “well regulated militia” really guaranteed every individual the right to own a gun. Wow. That is an interesting reading of the English language. What the Supremes have done is to not only warp the meaning and make it into twisted law, but to further prohibit states and local governments from declaring their places free of legal guns. The conservative court once again rules against the power of states, a principle that used to be associated with darn liberals who wanted to make sure everyone had the right to vote, for example, even though they weren’t properly white enough. Now when a city or state wants to outlaw firearms, too bad. The conservatives took away their powers and rights in favor of Big Brother.

To say that Hastings’ knowledge of history (United States and legal) is wanting would be an understatement. For instance, the “principle” which imposes the Bill of Rights on the states, the Fourteenth Amendment — which Hastings lauds — is the very basis by which the Supreme Court held that an individual is constitutionally permitted to own a gun.

Not to mention, Hastings got wrong the year of that landmark decision: The case was decided in 2010, not 2008. In 2008, the Supreme Court decided District of Columbia v. Heller which pertained only to an individual’s gun ownership in federal enclaves — like the District of Columbia. It did not apply to the individual states.

2010’s McDonald v. Chicago is the case which applied the Second Amendment to the fifty states.

It’s certainly bad enough that a “progressive” like Hastings would like to pick and choose which constitutional rights states and localities should be able to deny their citizens; equally bad is his lack of contemporary cultural insight.

For, while Hastings is correct that the “only logical path … is to repeal” the Second Amendment, currently that task is so daunting as to be virtually impossible. Merely take a glimpse at the American public’s view on guns and gun rights over the years.

Note the historical trend: The last four years have seen record high percentages of people saying “no” to banning the possession of handguns.

The one trend among the public that seems to benefit Hastings’ view is the desire for stricter gun laws — forty-seven percent currently favor such. However, while a mere fourteen percent want less strict laws, thirty-eight percent think current laws are sufficient. Combined, that still puts gun control advocates in the minority.

Read the full article.

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Back in May of 2010 — May 5th, to be exact — several (Caucasian) students at California’s Live Oak High School wearing shirts with the American flag on them were asked to leave school because they refused to turn their shirts inside-out.

What, what? Students had to turn their shirts around … because American flags were on them?

Yep — it was Cinco de Mayo, after all.

School officials at the heavily Hispanic school were concerned that Latino students would be offended by seeing Old Glory on the Mexican holiday (a holiday not even widely celebrated in Mexico), and that some fights could result.  Indeed, some 200 Mexican/Mexican-American students protested in a march that day upon hearing about their devious Old Glory-clad peers.

The gringos went to court … and lost. The Ninth Circuit recently declined to hear their appeal, citing “prior events” that took place at the school, including an “altercation” (presumably between a white and Hispanic student), as a rationale. (There had been some 30 fights between white and Latino students in the past six years at the school.) The appellate panel said “school officials ‘acted properly to prevent a substantial and material disruption of school activities.’”

(Check out The College Fix coverage of this case here and here.)

The US Supreme Court indeed has granted a lot of leeway over the last few decades to public school officials when it comes to regulating student speech. One notable ruling from seven years ago is the “Bong Hits 4 Jesus” case (Morse v. Frederick) in which a (public school) student unfurled a banner with “BONG HiTS 4 JESUS” on it across the street from his school during the Olympic torch relay.

SCOTUS Chief Justice John Roberts wrote for the majority in the case (emphasis added):

Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers . . . poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.

Perhaps anticipating the ensuing controversy, those in the majority with Roberts emphasized that this ruling “applied only to advocacy of illegal drug use.” Justice Samuel Alito, joined by Justice Anthony Kennedy, noted the “Bong Hits” case “‘provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue’ … including student opposition to the drug laws themselves” (emphasis added).

Confused yet?

You probably should be. The courts have pretty much been all over the map when it comes to lower ed. student speech rights.

The standard for such rights had been the Tinker case from 1969. The SCOTUS ruled then that students were indeed permitted to wear black armbands at school to protest the Vietnam War. The famous quote to emerge from the case was “Students don’t shed their constitutional rights at the school house gates.”

But since then, Tinker has arguably been eroded, despite Justice Alito’s reassurance in the Morse case. In addition to Morse, 1988’s Hazelwood v. Kuhlmeier allowed school administrators to censor student newspapers, even despite “protective” measures taken by student writers and editors.

Which brings us back to the situation at Live Oak High School. Does Morse apply here? Why or why not? Have we actually reached the point in this country where showing the American flag can legitimately be banned … despite it being displayed in front of our schools … and in each classroom within?

As an educator, I can fully appreciate the need for an “orderly educational environment,” and back in 2007 during the Morse case I was fairly sympathetic to the high court’s reasoning.

But these days, I’m not so sure.

If we’re actually at the point where a display of our own flag can be considered “offensive” — and hence banned — then where does it end? Will administrators now ban student displays of other national flags because they may offend some students, i.e. native-born Americans? And/or because such displays, like at Live Oak HS, may lead to some student scuffles?

Or, are only certain (politically correct) groups permitted to be “offended?”

More importantly, will this case now go to the US Supreme Court … and will the justices legitimize the heckler’s veto that the case enshrines?

Dave Huber is an assistant editor of  The College Fix. Follow him on Twitter @ColossusRhodey.

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In a decision that’s drawing alarm from public-disclosure and press groups, the Missouri Court of Appeals ruled that course syllabi at the University of Missouri aren’t subject to open-records laws.

The reason? Professors own the copyright.

The Student Press Law Center reports that the National Council on Teacher Quality plans to appeal to the Supreme Court:

The NCTQ filed suit against the university system in Boone County Circuit Court in October 2012 after the UM System declined to release course syllabi that “students actually receive from their professors” for a college evaluation project the group is working on with U.S. News & World Report.

“In responding to the NCTQ’s request for course syllabi, we felt it was important to respect the rights of the faculty members who created the syllabi,” John Fougere, the university system’s spokesman, said in a statement. …

Kate Walsh, president of NCTQ, an education research and advocacy group based in Washington, D.C., said they were “dismayed and surprised” by the court’s ruling. She also said that the ruling, if upheld, could suggest that any governing body can deny access to published documents by claiming its employees own the rights to the materials. [emphasis added]

The group is hopeful the Supreme Court will take the case:

The U.S. Supreme Court can hear appeals from state courts if there is an issue of federal law that is conclusive; in this case, the argument would be that the federal Copyright Act is the basis of Supreme Court jurisdiction.

In the meantime, students, if your professor is peddling a ridiculous syllabus full of bile toward anyone right of Che Guevara, just post it online.

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The Internet isn’t exactly known for reasoned, nuanced conversation. Well, maybe it is if you follow an excellent legal blog like The Volokh Conspiracy, which had a post Monday about the little-known translations of the U.S. Constitution into German and Dutch at ratification.

But if you’ve ever read the comments on a YouTube clip, or participated in a flame war in a Facebook post, surely you’ve agonized for the future of humanity.

What you may not have expected is that acting like a jackass online could be a criminal offense – and that it has bearing on hot-button campus issues like sexual harassment.

The Supreme Court is weighing whether to overturn a ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia that essentially criminalizes some out-of-context speech online, which worries the First Amendment advocates at the Student Press Law Center.

That group along with two other free-expression groups asked the high court to “set a high standard for criminally prosecuting speakers for references to violence on social media,” as SPLC said in a press release Monday.

The case revolves around a man whose Facebook posts “fantasized in graphic terms about killing his estranged wife and law-enforcement agents,” SPLC said.

Why is that relevant to college students? The groups’ friend-of-the-court brief notes:

Students and other young adults are prolific users of social media. As such, they are particularly affected by the court of appeals’ application of a negligence standard [i.e., you are responsible for the effect of your words on your listeners] to a statute criminalizing, inter alia, threats communicated through social networks.

The nature of social media communication and the rise of apps means that your intended meaning in any given post may get stretched and twisted into a different meaning for other readers, the brief says, citing the “narrative” building app Storify. This activity can happen

with or without the knowledge and consent of the original speaker. … Thus, a Twitter user’s harmless musing about a violent scene from a movie or television program could turn up, devoid of context but attributed to its original author, in a published narrative that gives the remark ominous unintended meaning.

Something similar happened to a Texas teen who, in an argument following an online gaming session with another user, made a sarcastic comment on Facebook about shooting up a school followed by “LOL” and “J/K,” the brief says. He spent months in jail after he was reported to authorities by a totally unrelated user.

The brief also notes a New Jersey professor was suspended by his college for posting a photo of his young daughter wearing a shirt with a violent Game of Thrones quote on it, on speculation that it was “threatening a school shooting”:

Such is the school’s concern that, even after the misunderstanding was revealed and the teacher reinstated with back pay, the school required him to remain off campus for more than a week and to visit a psychiatrist before returning to work.

Veteran observers of federal investigations of sexual harassment on campus may recall this similar attitude – that context is irrelevant when it comes to guilt – in the “blueprint” document that the departments of Education and Justice signed with the University of Montana last year.

The Foundation for Individual Rights in Education said then, quoting the federal agreement:

“sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation.” If the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

There are parallels between the government’s view of sexual harassment in the blueprint document, and the 3rd Circuit’s naive view that venting on Facebook is a genuine threat. Consider:

A school’s Title IX coordinator is required to log and keep records of complaints indefinitely (speech on social media is basically permanent, leading to future misunderstandings); “every case must be investigated,” in FIRE’s words (every off-color social-media utterance is worthy of reporting to authorities); “universities may even punish a student before he or she is found guilty of any offense” (venting online can be punished as a specific, credible threat).

Sadly, it seems more likely the Supreme Court will put strict limits on the criminalization of venting online, than that federal agencies will adopt commonsensical regulations when it comes to judging sexual offense.

Greg Piper is an assistant editor of The College Fix. (@GregPiper)

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The Supreme Court on Thursday gave Wheaton College the injunction it wanted against the Affordable Care Act’s contraceptive mandate.

But it’s not now deciding the broader question of whether Wheaton must follow the Obama administration’s so-called accommodation for religious nonprofits.

In the court’s dense legalese:

If the applicant informs the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.

The Associated Press translates that:

The court said it was not ultimately deciding the issue Thursday and noted that it is likely to take up the nonprofits’ cases at some point.

For now, though, it said in an unsigned opinion that the letter to [the Department of Health & Human Services] is sufficient and that the government can rely on the letter to ensure that women covered by Wheaton’s insurance can obtain emergency contraception at no cost.

See our previous coverage about Wheaton’s “community covenant” and the Justice Department’s claim that the Hobby Lobby decision actually goes against what religious colleges are asking for.

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