It’s not safe to display the American flag at an American high school, writes Eugene Volokh in his Washington Post blog. The Ninth Circuit Court upheld a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo because Mexican-American students had threatened violence the year before.
Under the Supreme Court’s Tinker decision, student speech may be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. The earlier threats of racial violence justified the flag ban, the court ruled.
This is a classic “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.
“Schools have special responsibilities to educate their students and to protect them both against violence and against disruption of their educations,” writes Volokh, a UCLA law professor. But what a sad situation.
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.
Live Oak High School students have learned a simple lesson, Volokh concludes. “If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers.” Thuggery pays.