Protect students' right to display the American flag despite "hecklers," free-speech icons urge Supreme Court

Two generations after the Supreme Court recognized students’ right of free expression in the Tinker case, today’s Court is being asked to reaffirm that the Tinker ruling really means what it says – by the Tinker family itself.

Brother-and-sister plaintiffs John and Mary Beth Tinker filed a friend-of-the-court brief urging the Court to take up the case of  Dariano v. Morgan Hill Unified School District, in which students lost their First Amendment challenge to a school ban on American flag apparel during a Latino heritage event.

In a February 2014 ruling, three judges on the Ninth Circuit U.S. Court of Appeals found no First Amendment violation in a California school’s decision to order students to remove American flag apparel during a Cinco de Mayo celebration in 2010. The school justified the ban by pointing to a near-altercation at the same event a year earlier, when a Latino student felt white students were goading and taunting him by waving an American flag and chanting “U-S-A!”

Applying the 1969 Tinker case, which permits schools to restrict speech if it portends a “material and substantial” disruption on campus, the Ninth Circuit decided that the school acted lawfully. The history of racial tension, and the prospect that tensions might escalate in reaction to students’ American flag shirts “made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”

But two people who know the Tinker case better than anyone – the Tinkers themselves – say the Ninth Circuit got it wrong.

In their amicus brief, the Tinkers say schools shouldn’t be allowed to ban provocative speech just because people who disagree might try to silence the speaker by lashing out – what the Supreme Court has termed a “heckler’s veto.”

“This case is an ideal vehicle to clarify the holding of Tinker, to reaffirm the vitality of the ‘heckler’s veto’ doctrine, and to prevent students (both the potentially violent and the peaceful) from learning a message that is the very antithesis of the First Amendment: that speech can be effectively suppressed by threat of violence,” says the brief, which likens the Morgan Hill students’ flag apparel to the Tinkers’ own Vietnam war protest armbands, which also provoked harsh words from classmates yet were deemed constitutionally protected.

The brief was authored by a “dream team” of First Amendment litigators including Robert Corn-Revere of Davis Wright Tremaine LLP and Eugene Volokh of the UCLA School of Law.

The Court has hesitated to accept student-speech cases, rejecting several petitions in 2013 that asked for clarification of schools’ punitive authority over what students say on off-campus social media. Most recently, the Court  refused to consider a federal appeals court’s decision protecting the right to wear cancer-awareness wristbands bearing a word – “boobies” – that a Pennsylvania school tried to forbid as “lewd.”

But the Dariano case presents unusually tempting facts. It involves exactly the kind of speech – the American flag – that the Court’s Republican-appointed majority would be most inclined to regard as worthy of constitutional protection.

And there was substantial opposition to the Dariano outcome within the Ninth Circuit itself. When the court refused to accept the February 14 opinion for reconsideration by the full (“en banc”) lineup of Ninth Circuit judges, Judge Diarmuid O’Scannlian issued a resounding dissent joined by two colleagues.

Rebuking the court for refusing to rehear the case, O’Scannlian wrote that the Dariano ruling “permits the will of the mob to run our schools.” The entire dissenting opinion is well worth reading for its forceful defense of freedom of expression in schools, even when the expression is challenging and suppressing it would make life easier for school officials. But one passage in particular is the judicial equivalent of a mic-drop:

In this case, the disfavored speech was the display of an American flag. But let no one be fooled: by interpreting Tinker to permit the heckler's veto, the panel opens the door to the suppression of any viewpoint opposed by a vocal and violent band of students. The next case might be a student wearing a shirt bearing the image of Che Guevara, or Martin Luther King, Jr., or Pope Francis. It might be a student wearing a President Obama "Hope" shirt, or a shirt exclaiming "Stand with Rand!" It might be a shirt proclaiming the shahada, or a shirt announcing "Christ is risen!" It might be any viewpoint imaginable, but whatever it is, it will be vulnerable to the rule of the mob. The demands of bullies will become school policy. That is not the law.

Tagged: dariano v. morgan hill, First Amendment, Mary Beth Tinker, recent-news, tinker v. des moines