JURIST Guest Columnist Ashutosh Bhagwat of University of California, Davis School of Law argues the US Court of Appeals’ decision to uphold the ban on American flag shirts at Live Oak High School on Cinco de Mayo may have constituted a heckler’s veto over the rights of free speech …

On February 27, the US Court of Appeals for the Ninth Circuit announced its decision in Dariano v. Morgan Hill Unified School District. The case raises some very difficult questions about the free speech rights of public-school students, and how those rights should be reconciled with school officials’ legitimate desires to maintain a safe and orderly school environment. At a more basic level, the case also poses very fundamental questions about the nature of debate and tolerance in our diverse society.

The controversy in Dariano arose from the Cinco the Mayo celebration held at Live Oak High School in Morgan Hill, California on May 5, 2010. Live Oak has a history of violence among students, including gang violence and racial tensions between Caucasian and Mexican students (I use the court’s terminology in describing students’ ethnicities). During the 2009 Cinco de Mayo celebration, a year before the incident involving the Dariano lawsuit, a verbal altercation had broken out between Caucasian and Mexican students over the raising of an American flag by the former. Then in 2010, on Cinco de Mayo a group of Caucasian students wore t-shirts depicting the American flag to school. The students were confronted by several of their fellow students, and during “brunch break” school officials were told that “there might be problems” because of the t-shirts. In response, school officials met with the t-shirt-wearers, and asked two of them to either turn their shirts inside-out, or go home for the rest of the day, with an excused absence. The students chose to go home. Following these events, the students received threats by text message and telephone. Eventually, the students and their parents filed suit against the school district alleging violations of their First Amendment free speech rights (as well as other, more marginal claims that we will ignore). The trial court dismissed the lawsuit, and the plaintiffs appealed to the Ninth Circuit.

The framework applied by the appellate court to resolve the case derives from the Supreme Court’s groundbreaking 1969 opinion in Tinker v. Des Moines Independent Community School District. Tinker was the first Supreme Court opinion to recognize that public school students possess First Amendment rights. In that case, the court concluded that the Constitution did not permit school officials to punish students simply for wearing black armbands to school, in protest of the Vietnam War. Tinker did not, however, hold that students’ rights are unlimited, or even equal to the rights of adults. In particular, the Tinker court explicitly recognized that schools may prohibit speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Later cases confirm that schools may punish or prohibit student speech that is vulgar or lewd, speech which is “school sponsored” or part of the curriculum (in particular, the contents of the school newspaper), and speech advocating illegal drug use (the infamous “Bong Hits 4 Jesus” decision). The Supreme Court, however, has provided essentially no guidance on how the “materially disrupts” and “substantial disorder” language of Tinker should be applied in run-of-the-mill cases.

Under the rules laid out by Tinker and its progeny, Dariano is a genuinely hard case. The reason is that the wearing of an American flag t-shirt is obviously not itself lewd or disruptive, nor is there any allegation that the t-shirt wearing students acted in an aggressive or disruptive manner. The Ninth Circuit concluded, however, that the risk of violence created by the t-shirts justified the school officials’ actions, especially since the students were not officially sanctioned for refusing to turn their shirts inside-out. The court emphasized that the students themselves did not deny that their shirts might provoke violence, and the later threats (which resulted in the plaintiffs staying home from school on May 7) leave little doubt that the risk was real. Given all of these circumstances, and the school’s history of violence, the court concluded that school officials acted reasonably as well as constitutionally.

At first glance, it seems hard to argue with the Dariano decision. After all, the Caucasian students’ decision to wear flag t-shirts on May 5 was plainly and intentionally provocative. Moreover, the risk of violence was clearly real, and obviously school officials have a paramount obligation to prevent violence on school campus. But on closer look the Ninth Circuit’s reasoning is quite troubling. For starters, the fact that the students’ actions were provocative does not mean that their speech was unprotected. The Constitution, after all, has been interpreted to protect wearing a jacket with the words “Fuck the Draft” written on it, and to protect burning the American flag. It surely then must protect wearing a t-shirt portraying the American flag, even if the t-shirt may be perceived as racist by onlookers (one student asked one of the plaintiffs “Why are you wearing that? Do you not like Mexicans”). Admittedly, schools are different from public places, and courts have permitted schools to exclude explicitly racist symbols as well as Confederate flag depictions because of the risk of racial violence. But the American flag is hardly such an inherently racist symbol. Even in Tinker, after all, protesting a war during the middle of that war was highly provocative/controversial and could be understood as unpatriotic—in fact the arm-band wearers were subject to hostile remarks.

According to the Ninth Circuit, what distinguished Tinker was the lack of any violence in that case. The key to Dariano, then, must be the violence inherent in the situation. But now things get very sticky. When Tinker referred to disruption of schools, the court appeared to be primarily referring to disruptive or violent conduct on the part of the speakers, which schools can of course punish. Here, however, the potential violence arose because of onlookers’ hostile reaction to the speech. The Supreme Court’s approach to potential violence by hostile audiences, however, has generally been very different from the Dariano court’s decision. In two foundational First Amendment cases from the 1940s, Cantwell v. Connecticut (involving a Jehovah’s Witness) and Terminiello v. Chicago (involving a red-baiter and anti-semite), the court made clear that speech cannot be suppressed simply because it offends, or even riles up, a hostile audience. The court backed off of this commitment to protect unpopular speakers in a (much-criticized) McCarthy era decision, but then in subsequent cases from the Civil Rights era it once again embraced and repeatedly reaffirmed the principle that hostility or even threats of violence from onlookers cannot by themselves justify silencing unpopular speakers. Rather, the obligation of the police is to take all reasonable steps to protect the speaker, and step in to stop the speech only if there is no other way to avoid violence.

Moreover, this approach to protecting provocative speakers must be correct. The alternative would be to create a “Heckler’s Veto,” in which unpopular speakers and viewpoints could be silenced completely by hostile crowds. Civil rights protestors, needless to say, were not popular among the Caucasian majority in the South during the Civil Rights era, and southern police regularly used the excuse of hostile crowds to shut down protests. The court’s decisions quite correctly held that this violated the First Amendment, since granting a Heckler’s Veto would eviscerate the right to protest majoritarian policies. The primary role of the First Amendment is to protect the democratic process, and the right of the minority to protest and criticize the majority is an essential part of that process.

Now back to Dariano. The risk of violence at Live Oak was undoubtedly real; but the threats of violence came not from the speakers, but from hostile onlookers. The Live Oak officials’ response, however, was not to protect the speakers or punish the threat-makers, but rather to silence the speech. This seems a classic Heckler’s Veto, and would surely be impermissible if the speech was part of a public protest in some other setting.

Does that fact that these events occurred at a school change things? Maybe. High schools, after all, are small communities in which ongoing interactions—and thus the potential for violent reactions—between students are inevitable. Perhaps we can also be less confident that angry teenagers will refrain from acting on their violent impulses than we can be with adults. Furthermore, presumably we would not be happy with a “solution” to tensions in high schools that involves deploying riot police on a regular basis (as happens when unpopular groups such as Nazis hold assemblies in other public places). Finally, with regards to the threat of violence, it is not clear from the facts as described by the Ninth Circuit that any of the Mexican students had made sufficiently explicit threats to justify punishment. Thus, officials may have been faced with a real, significant risk of violence (given the history) and no easy way to avoid it. Under those special circumstances, perhaps their decision to briefly silence the speech was justified—after all, the school did not ban flag t-shirts for good, but only on that one day. There is, however, always a cost when public officials effectuate a Heckler’s Veto. Such actions reward intolerance and threats of violence, and silence unpopular views, perhaps at the time and place where they might have the most communicative effect. In an age when civility in political dialogue seems to be fast disappearing, that is something that should give us pause.

Ashutosh Bhagwat is a professor of law at University of California, Davis. Prior to joining the faculty at UC Davis, Ashutosh was a professor of law at University of California, Hastings College of the Law. He clerked for Associate Justice Anthony Kennedy of the United States Supreme Court, as well as Judge Richard Posner on the US Court of Appeals for the Seventh Circuit. In 2011, Ashutosh was appointed to serve on the Board of Governors of the California Independent System Operator, a public benefit corporation responsible for running the high-voltage electricity grid to California.

Suggested Citation: Ashutosh Bhagwat, Heckler’s Vetoes in High School, JURIST – Forum, Mar. 7, 2014, http://jurist.org/forum/2014/03/ashutosh-bhagwat-heckler-veto.php.