If you want to know what kind of judges George W. wouldn't nominate (or at least, not by intention), look no further than the Ninth Circuit Court of Appeals. John Leo has the scoop.
In a 2-1 split, the court ruled that a California student, Tyler Chase Harper, had no First Amendment right to go to school wearing a T-shirt condemning homosexuality.
In response to a "Day of Silence" sponsored by the Gay-Straight Alliance at Poway High School in Poway, Calif., Harper wore a shirt that said, on the front, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, "Homosexuality Is Shameful 'Romans 1:27.'" The principal ordered Harper to take off the shirt. Harper refused to comply and sued. He argued that the purpose of the "Day of Silence" was to "endorse, promote and encourage homosexual activity" and that he was entitled to use his T-shirt message as a rebuttal. He cited his First Amendment rights to free speech and freedom of religion.
Much T-shirt jurisprudence turns on the question of whether direct threats or the likelihood of severe disruption or violence are involved. In this case Reinhardt and his colleague Judge Sidney R. Thomas argued that T-shirt messages could be excluded from First Amendment protection if they strike at a "core identifying characteristic of students on the basis of their membership is a minority group."
This ruling creates a new and large category of viewpoints excluded from First Amendment protection. It said that "derogatory and injurious remarks directed at students' minority status such as race, religion and sexual orientation" can be banned, but not other controversial messages. Based on the ruling here, criticism of illegal aliens might be banned too, says Eugene Volokh, professor of law at UCLA. Volokh argues that the phrase "such as" in the ruling indicates that other groups might be granted freedom from criticism at schools. Thus homosexuality, a subject up for political and moral debate, can be argued in the T-shirt wars only on the pro side, not on the con.
Now I have little sympathy for Mr. Harper's religious views, but considerable sympathy for his constitutional views. I believe that High Schools are entitled to ban or limit political expression on the school grounds for purposes of order and decorum. What they are not entitled to do is to license one side in a political/religious controversy to express their opinions while putting a muzzle on the other. In RAV v. Saint Paul, the court struck down a hate crimes law precisely because it was not even handed. Antonin Scalia, writing for the Court, said that under the Saint Paul law
One could hold up a sign saying, for example, that all "anti-Catholic [505 U.S. 392] bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion." St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.
The hard part of freedom of speech is that really nasty people are free to say really nasty things. But fair is fair. If students are allowed to advocate civil liberties and civil rights on campus, then a student who happens to be a member of the Ku Klux Klan must be allowed to state his opinions as well. If this threatens campus order, the administration can shut the whole thing down. It can't pick and choose. Liberals used to believe in free speech for everyone. The 9th Circuit doesn't believe that anymore.
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