• Twitter
  • Facebook
News-Sentinel.com Your Town. Your Voice.
Opening Arguments

Heckler's veto

We're through the looking glass now, aren't we, Alice?

SAN FRANCISCO (AP) — Officials at a Northern California high school acted appropriately when they ordered students wearing American flag T-shirts to turn the garments inside out during the Mexican heritage celebration Cinco de Mayo, a federal appeals court ruled Thursday.

The 9th U.S. Circuit Court of Appeals said the officials' concerns of racial violence outweighed students' freedom of expression rights. Administrators feared the American-flag shirts would enflame the passions of Latino students celebrating the Mexican holiday. Live Oak High School, in the San Jose suburb of Morgan Hill, had a history of problems between white and Latino students on that day.

I've frequently written that sudents in school don't have exactly the same rights as adults in the larger society -- schools are structured learning environments where students go to learn, not exercise their rights. And given past disruptions, the court was on firm ground (citing the 1969 Tinker case) in saying that the possibility of disruption was reason enough to limit the students' right of espression.

So I'm not disputing this on consitutional grounds. It's just that we've come to a very strange place when an American school would forbid the espression of American patriotism because of the threat of violence from somebody celebrating another country's holiday.

As Eugene Volokh points out, this is a classic case of "heckler's veto" -- thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence:


“Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker‘s “forecast substantial disruption” test, such a heckler’s veto is indeed allowed.

[. . .]

Yet even if the judges are right, the situation in the school seems very bad. Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.

And this is especially so because behavior that gets rewarded gets repeated. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?