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Monday, March 30, 2015

'Bullies' now trump free speech, lawyers say

Supremes refuse to intervene in school's censorship of flag shirts



“Bullies” can now establish free-speech policy at schools across America simply by threatening violence if they don’t get their way, according to attorneys who have argued the issue.
That essentially is the conclusion after the U.S. Supreme Court on Monday refused to intervene in a California case in which school officials censored flag-themed shirts worn by some students at a high school because they feared violence from Latino students.
Erin Mersino, senior trial counsel for the Thomas More Law Center, had asked Supreme Court to intervene.
“This is a tremendous blow to the free speech of students everywhere,” he said. “The court, by not taking the case, has enabled the voice of bullies to trump to voice of students who simply wish to express passive, peaceful speech.”
Her concerns echoed those of a minority panel of judges on the 9th U.S. Circuit Court of Appeals, where the majority’s censorship now stands.
There, Judge Diarmuid O’Scannlain warned in his dissent that the decision would result in “mob rule.”
“The next case might be a student wearing a shirt bearing the image of Che Guevara, or Martin Luther King Jr. or Pope Francis,” he said. “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 accounting “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,” he said.
As WND reported, the case arose in 2010 when school officials at Live Oak High School in Morgan Hill, California, south of the Bay Area, barred students from wearing shirts bearing the U.S. flag on the Cinco De Mayo holiday, “because other students might have reacted violently.”
The suit was brought on behalf of students who were told by school officials, Principal Nick Boden and Assistant Principal Miguel Rodriguez, to turn their flag-themed shirts inside out or remove them.
The parents of the students named in the case are John and Dianna Dariano, Kurt and Julie Ann Fagerstrom, and Kendall and Joy Jones.
The students sued the district “after their Mexican-American principal, claiming to be acting out of concern that Mexican students might retaliate with violence, ordered them to remove their American flag T-shirts or turn them inside out.”
Also representing the plaintiffs are the American Freedom Law Center and the Rutherford Institute.
Rutherford Institute President John Whitehead said that when public school students “can’t wear an American flag on a T-shirt because it might be disruptive, then free speech as we’ve known it is dead.”
“If the Supreme Court continues down the road to political correctness, then eventually anything we say will be treated as threatening as a loaded gun and deemed just as dangerous,” he said.
The Thomas More Society said a number of First Amendment scholars endorsed its position, including well-known legal analysts Eugene Volokh and Erwin Chemerinsky.
Also, the Tinkers, the plaintiffs in the seminal U.S. Supreme Court case involving free speech in schools, Tinker v. Des Moines Independent Community School District, submitted a friend-of-the-court brief in support of Thomas More’s case.
Courts in the past, when striking down such provisions, have called it the “heckler’s veto,” because it literally allows a heckler to shut down free speech because of a threat of illegal behavior, such as violence.
School district officials have declined to respond to WND requests for comment.
In a recent online posting they explained they have chosen “a delicate balance that must be achieved in protecting students’ First Amendment rights within the operational and safety needs of schools.”
“There are all kinds of labels being put on so-called ‘unacceptable’ speech today, from calling it politically incorrect and hate speech to offensive and dangerous speech, but the real message being conveyed is that Americans don’t have a right to express themselves if what they are saying is unpopular or in any way controversial,” said Whitehead. “Whether it’s through the use of so-called ‘free speech zones,’ the requirement of speech permits, or the policing of online forums, what we’re seeing is the caging of free speech and the asphyxiation of the First Amendment.”


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