Some squeals are more equal than others…

…apologies to George Orwell.

Whether a student in a government school, therefore victim of the NEA hostage conspiracy, has the right to offend others suffering similar coercion is not the same question as whether he has a right to do so in the public square. He has fewer rights in the school because other conscripts students represent a government mandated captive audience. Our courts, however, continue to demonstrate insensitivity in defining those limits.

Any justification for abrogating the First Amendment deserves minute scrutiny. On that basis, a recent decision by the Ninth Circuit Court of Appeals fails to satisfy. The Poway Unified School District, in San Diego, had decided to promote respect for diversity by staging a “Day of Silence.” The accoutrements of the “day” included students wearing duct tape over their mouths to symbolize the speech oppression that results from lack of respect for diversity. Displays pointing out the harm caused by insensitivity to sexual orientation were encouraged.

Tyler Harper was having none of it. His response to a pro-gay-rights event put on at the school by the Gay-Straight Alliance was to wear a T-shirt t which said on the front, “Be Ashamed, Our School Embraced What God Has Condemned,” on the back, it said “Homosexuality is Shameful.” It was clearly a diverse opinion. Was it protected speech?

Harper’s principal didn’t think so, and ordered him to take the T-shirt off. Harper refused, and for his temerity spent a day isolated from other students. Later, he sued, claiming his First Amendment rights had been violated. The case eventually came before the Ninth Circuit of Appeals, famous for its ruling that the Pledge of Allegiance is un-constitutional.

Lawrence Siskind, at Tech Central Station, writes of the decision:

The Ninth Circuit might have upheld the school officials’ actions in a number of value-neutral ways. Free speech in public schools is not as broadly protected as free speech outside. The court might have cited the school’s right to restrict any speech, regardless of viewpoint, if likely to cause substantial disruption. The court might have cited the high procedural burden of obtaining preliminary injunctive relief in the absence of threatened injury. With the Day of Silence over, and no future Day imminent, the court might have ruled that Harper had simply failed to meet his burden.

But that is not how the Ninth Circuit treated Harper’s appeal. Instead, in a 2-1 decision, Judge Reinhardt used the case to articulate a new concept of free speech regulation. Focusing on the specific anti-gay content of Harper’s T-shirt, he ruled that schools may restrict “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” In a footnote, he wrote that the court would “leave … to another time” the question of limiting derogatory remarks aimed at gender. But Judge Reinhardt proceeded to establish a new constitutional calculus, under which the protectability of speech would depend on the minority status of the listener.

Judge Reinhardt wrote that a different standard should apply to derogatory remarks aimed at “majority groups such as Christians or whites” because “there is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status.”

Perhaps there is, but it is not a difference recognized in the Bill of Rights.

The Bill of Rights also does not recognize suppression of political speech, such as has been handed to us by McCain-Feingold Campaign Finance “Reform”, passed into law because George Bush does not know the meaning of the word “veto” and upheld by a Supreme Court more concerned with “the appearance of corruption” than with the plain meaning of the First Amendment. I don’t think they’ll quite be able to choke this one down, though.

Check the Link to Siskind’s article above and see also, Sorry, Your Viewpoint Is Excluded from First Amendment Protection at The Volokh Conspiracy.