TCS Daily

Gag Order

By Lawrence Siskind - July 19, 2006 12:00 AM

For forty years, the United States has lived with a variety of government programs applying preferential treatment based on race or gender or both. These programs have generally been limited to education and public contracting.

Recently, in a 2-1 decision, a panel of the Ninth Circuit Court of Appeals handed down a decision which may provide a foundation for applying preferential treatment to freedom of speech. If allowed to stand, the decision could authorize local governments to set varying limits to free expression, depending on the race, religion, or sexual orientation of the listener. Preferential treatment has proved one of the most divisive policies of modern America. The Ninth Circuit's decision could radically expand its scope.

Harper v. Poway Unified School District grew out of a decision by a San Diego area high school to hold a "Day of Silence" to "teach tolerance of others, particularly those of a different sexual orientation" (in the words of its Assistant Principal). Participating students wore duct tape over their mouths to symbolize the silencing effect of intolerance. Others wore black T-shirts bearing a purple square and a yellow equal sign. The Gay-Straight Alliance, with the school's permission, put posters "promoting awareness of harassment on the basis of sexual orientation."

Not all students supported the Day of Silence. Tyler Harper arrived wearing a T-shirt reading "I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED" on one side, and "HOMOSEXUALITY IS SHAMEFUL 'Romans 1:27'" on the other. The next day, his T-shirt read: "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED." School authorities considered the T-shirt "inflammatory" and refused to allow Harper to wear it on campus. When he would not remove it, they confined him to a school conference room. He spent part of the day doing homework, and part discussing the Bible and the T-shirt with school officials and a deputy sheriff. After the last period, Harper was instructed to proceed directly off campus.

Harper sued the school district on First Amendment and other grounds. He sought a preliminary injunction barring the district from "continuing its violation of [his] constitutional rights." After the district court denied the motion, Harper appealed.

This was not an easy case. The school had experienced disruptions and altercations during a previous Day of Silence, and officials were anxious to avoid trouble. Despite his disobedience, Harper was not disciplined in any way. He received full attendance credit for his day confined to the conference room.

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 Supreme Court has upheld, under limited circumstances, the right of states to grant preferential treatment to minorities in access to education and public contract opportunities. In a 2003 decision involving Michigan Law School, former Justice Sandra Day O'Connor observed that 25 years of racial preferences may be necessary to achieve equality. But she was addressing a state school admissions policy. When given the chance, voters have regularly rejected such programs. If, as Judge Reinhardt found, constitutional rights themselves may be allotted to the people on a preferential basis depending on minority status, such preferences may be beyond democratic challenge by the voters.

In his dissent, Judge Kozinski pointed to the practical difficulties of applying Reinhardt's novel concept. If the Pope condemns gay marriage, could a student wear a T-shirt reading "CATHOLICS ARE BIGOTS"? On the one hand, Catholics are a minority with a long history of oppression in this country. So they would seem to qualify for Judge Reinhardt's preferential treatment. But Catholics are part of the larger Christian faith, which Judge Reinhardt described as having "always enjoyed a preferred social, economic and political status." Blacks are a minority nationally, but in many school districts they constitute a majority. May a white student wear a T-shirt bearing an anti-black message in a nearly all black school, since the white student would be a minority in that context?

Beyond the problems of defining who receives extra protection and who is subject to extra restriction, there is this unsettling thought: If freedom of speech depends on the minority status of the listener, what about the other enumerated constitutional rights? Why stop at the First Amendment? The Bill of Rights contains nine more.

The Second Amendment protects gun ownership. Are Jews entitled to easier access to guns in view of their history as victims of violence? The Fourth Amendment provides that no property may be taken for public use without just compensation. Are Japanese-Americans entitled to greater monetary compensation in eminent domain cases, in view of their forced relocation during World War II? For each component of the Bill of Rights, one can make a historical case for granting some groups greater entitlement than others. If the Ninth Circuit's decision stands, and if assorted factions vie for the title of "historically oppressed minority group," the courts may end up facing just such cases.

The Supreme Court displays a particular interest in Ninth Circuit constitutional adjudication. While the Ninth Circuit is one of 13 federal appellate courts, its rulings account for one fifth of the High Court's docket. Last year, the Supreme Court reviewed 18 Ninth Circuit decisions, while considering only seven cases from the Second Circuit. Of the 18 reviewed, the Supreme Court reversed or vacated 15, 12 by unanimous votes.

Harper v. Poway Unified School District is not over. Harper has requested en banc review, a procedure in which the decision of a 3-judge panel is reviewed by the chief judge and 10 other judges. En banc review is granted in cases involving questions of "exceptional importance." The question of whether freedom of speech may be allotted based on race, religion, or sexual practice would seem to qualify for such examination. If en banc review is denied, or if the holding remains after such review, then the Supreme Court may choose to have the last word on a Ninth Circuit matter -- again.

Lawrence Siskind is a writer and attorney in San Francisco.



There's a reason they call it the Ninth Circus
The question is how long to we tolerate judicial tyranny where judges simply do whatever they wish to enforce their political whims?

How long will we continue to call ourselves a constitutional democratic republic when we've simply become an administrative commisarate?

Equal Protection, Strict Scrutiny and the White, Heterosexual, Christian Male
The ruling of the Ninth Circus has ignored two important ideas that it rigorously applies to any case involving non-whites, non-heterosexuals, non-Christians or non-males: the Equal Protection clause of the 14th Amendment and the concept of strict scrutiny. Don't expect the ACLU to come running to defend Tyler Harper.

The Equal Protection clause of the 14th Amendment states that we are all due the equal protection of the laws unless there is some compelling reason why people should be treated differently. It never states that minority status should grant special priveleges, such as preferential hiring treatment or the right not to be offended. In this instance, the court has granted homosexuals the right not to be offended by Tyler Harper's shirt.

Furthermore, the Ninth Circus has denied Tyler Harper the right to express the fact that he is offended by the Day of Silence and the message of tolerance for homosexual behavior by wearing a shirt that expresses his religious beliefs. Generally, the court applies the strict scrutiny standard whenever a law restricts the freedom of speech. There must be a truly compelling state interest in this sort of speech not being allowed. Apparently, preventing homosexuals from being offended is right up there with protecting state secrets, preventing the advocacy of genocidal campaigns against Jews and yelling "Fire!" in a crowded theater.

The Fourteenth Amendment was put in the Constitution to stop the government from denying the rights provided therein to any of its citizens without a very good reason. The First Amendment was put in the Constitution to stop the government from silencing those who said things that they thought were offensive. They were great while they lasted, but the Ninth Circus just killed them. Of course, now we can bring back the Alien and Sedition Acts, Jim Crow and "seperate but equal." As long as we only apply it white, heterosexual, Christian males...

People trying to make the point that intolerance silences, are in turn using the courts to silence those they disagree with.

I'm guessing that most liberals have had their irony genes surgically removed.

Time to terminate the Ninth Circuit....
The Ninth Circuit Court has had a long and dismal history of producing flawed decisions that are later overturned by the High Court. In any other arena, such a poor record would lead to the dismissal or even dismantling of the organization that created it. If, for example, a team of autoworkers produced such poor products that 15 cars out of 18 had to be recalled, would there be any doubt that members of that team would soon be looking for new jobs? Yet, year in and year out, the Leftist judges of the Ninth continue to produce their flawed product and we, the taxpayer, continue to finance them. Maybe it is time to do away with the Ninth.

The Ninth Circuit has aways been overpopulated with morons. Reinhart has always been one of the biggest. He is incompetent, corrupt and has all of the judicial acumen of a lobotomized pig.

Academics have, for years, been restricting the right of free speech as applied to their students. Just look at the record of colleges banning campus paper articles, speeches, speakers, etc. I do not support hate groups and their propaganda --- the majority tyranny over the minority. But what I am seeing is the reverse --- the tyranny of the minorities.

These minorities have NO special human rights --- or any other special rights and considerations. They have NO priority over others. The DO have a responsibility to respect the rights and opinions of others --- which they do not. They expect the world to kiss their asses. (And PULLEEZZ don't give me that "we have to make it up to them" crap. WE don't!)

This kid has the right to express his opinion, no matter how unpopular it is with the authorities. THAT is the essence of the First Amendment.

And the idiotic, social-experiment-oriented "educational" system promotes the opposite. Thesse clowns should spend more time educating and less time pontificating and rearranging social order. Because they don't spend time educating (and always bitvhing about money --- of which they have more than enough), America's educational level has dropped unbelievably since I was in high school. The NEA, IFT and others have effectively destroyed America's youth by spending more time on tolerance and diversity than on the "three Rs."

(BTW: The kid got full attendance credit because if he didn't the school district would lose out on his state funds for the day.)

And incompetent, idiot judges like Reinhart and his cronies are supporting this crap.

Personally, I'm getting sick and tired of every little ****-ant group that considers itself an oppressed minority demanding its "rights" --- as it sees it.

Hey! I'm a white, male, American Christian of European descent! THAT makes me a minority! Where are MY special rights?

Both sides wrong
The school has no proper business promoting its social agenda. The administrators should be fired. The kid has no proper business promoting religion in a public school - not that public schools should exist, which is the fundamental flaw without which this whole nightmare could not exist.
The school is there to educate, and should have a dress code that forbids all distractions from the goal of education: no printing on shirts, no duct-taped mouths, etc..
The ninth circuit, of course, is just evil.

Love to hate
If we can have Love your Neighbor day, why can't we have Hate your Neighbor day? Love and hate both are values and we want our schools to promote all values equally. When a federal judge allows a school to ask a kid not to wear "God hates fags", what's the world coming to?

One of your friends has a family member who is gay. Even if you don't know who, its a statistical certainty (if you have any friends). Mary Cheney is just one. Hating homosexuals is hating these individuals you know and care for. You want schools to promote good values. Hate is not one of them.

The 14th
PubliusJr, in my view your assessment is correct.

The important distiction in this case is that Tyler, a student, not an employee or representative of the school district, is acting on his own behalf without the (explicit or implicit) endoresment of the State.

I disagree - to an extent
The kids has every right to express his opinion, religious or not. Those who are antiChristian or antireligious can express their opinions --- as evidenced by what has happened in our educational system and society in general. Those who are atheists can express their opinions. Aren't antiChristian, antirelgiious and even atheistic points of view equally associated with religion?

And if you are calling the 9th Circuit "evil," isn't that essentially a religious point of view? "Evil" is defined by religion. Things that are unethical, immoral (from the word "mores" --- a societal standard that may or may not be based in religion) are not necessarily defined as "evil" because of their general secular connotations.

Let the kid express his religious point of view. Anyone who argues with him is a fool because everyone knows you can't successfully argue belief --- look at Islam. But he is entitled to express that point of view. No matter who likes it, dislikes it, agrees with it or disagrees with it.

The kid has every right to promote his religion in a public school.
It's freedom OF religion, not freedom FROM religion

as usual, LG knows what's best for everyone, he even knows what everyone thinks and believes
BTW, the kid was not wearing a God hates fags tee-shirt, so stop with the inane strawmen.

No Subject
WOW you couldn't have missed the point of this article more if you tried. It's not about hating or loving. It's about the right to express my views, regardless of whether you like them or not.

Liberals can't really be this dense can they?

The kid has no proper business promoting religion in a public school

What? The First amendment is abrogated in public schools?

Hey Dipstick- Judges don't ask
When a federal judge allows a school to ask a kid not to wear "God hates fags", what's the world coming to?

That wasn't on the shirt as reported. Can't you once, just once keep your argument focused on the facts at hand and not screw it up?

Judges don't ask, they order-then again you probably think the IRS asks for contributions.

actually, they can
the average liberal believes that any opinion they disagree with is a form of hate, and that the govt has the authority to outlaw hate where ever it is found.

Liberals can't really be this dense can they? Short Answer-Yes.
Stick around a while: Liberal Goofball is a comedy of errors. Correction, if he can type, he can vote: especially with the new idiot-proof machines. Therefore its not comedy, its tragedy.

Sometimes, I think he's just a desperately lonely person who has concocted this caricaturish persona in a bid to get some sort of interaction with other people, sort of like a kid that misbehaves when they aren't getting enough attention.

if you outlaw strawment, then only outlaws will have strawmen
How is LG going to ever win an argument, if you ban his only effective debate technique?

small hyperbole

There are limits to free speech, particularly in schools. Students may be allowed to advocate truthfulness but not lying, etc.

It is disturbing that so many of you (bloggers) are upset that kids were prevented from saying things that you never would want said to your loved ones who happen (as a matter of statistical certainty) to be gay. It's not like they were trying to advocate tax cuts or even prayer in school.

Everybody's a Minority!
Danish-Americans, Swedish-Americans, German-Americans, Polish-Americans, British-Americans, Irish-Americans, Methodists, Presbyterians, Seventh Day Adventists, Lutherans, Mormons, are all ethnic, cultural and religious minorities! Stand up for yourselves!

All of these Americans and all of these individual religious denominations are the ONLY MINORITIES IN THIS COUNTRY lumped together by the color of their skin or grouped under a generic "Christian" banner and then discriminated against in school, in the workplace, and by the Government to which they pay more than their fair share of the taxes. And if they wish to articulate a clearly minority viewpoint in today's left-majority schools, they are hushed not just by their "teachers" but by administrators, the ACLU, and now this gaggle of idiot judges.

Freedom of speech ought not to be only for the politically "correct", but for everyone. Even those with whom we disagree vehemently.

what is reasonable to you, is not reasonable to someone capable of thought
condemning and hating are not equivalent.

If someone wants to advocate lying, I would not seek to have that banned.

Unlike you, I can tolerate people who advocate things I disagree with.

As to what they were advocating, as usual LG declares his right to be free of words he believes to be harmfull. But as usual, he doesn't extend this right to those with whom he disagrees.

As usual, LG doesn't believe people have a first ammendment right to say things he finds harmfull.

We don't have a right not to be offended
"It is disturbing that so many of you (bloggers) are upset that kids were prevented from saying things that you never would want said to your loved ones who happen (as a matter of statistical certainty) to be gay."

I've had plenty of things said to me in school that I didn't want to have said. Fat kids, skinny kids, socially awkward kids, computer-geeks, metal-heads, unathletic kids...all these kids have nasty things said to them and all of them constitute a "minority group" within the general population.

If teachers and administrators wish to enforce speech codes to protect children from having things "said to them that they don't want said", then schools should enforce such codes across the board - NOT just protect one group or another.

Schools that hold "Day of Silence" events must also hold events such as "Fat Acceptance", "Be Nice to A Geek", "Take a Cheerleader to Lunch" (because cheerleaders are clearly a tiny minority group in schools), and others.

It is patently unfair for one group of minorities to enjoy protected status from the schools and the courts while so many others must suffer daily the slings and arrows of hatred, ridicule and abuse.

good analogy
Let's pursue your fat kid example. For one thing, being obese is more of a lifestyle decision than being gay, though not entirely so. Few people would cite the first amendment if a teacher asked a kid not to wear a "OBESITY IS SHAMEFUL" tee shirt. You can't stop kids from teasing each other, but the school policies send a message about right and wrong.

The 14th

Well stated arguement. The distinction between one acting in the capacity of an individual, private citizen and one acting in the capacity of an agent of the state is fundamental. Well done.

How many are required for a minority

Your post reminds me of the experience of a friend of mine. George (not his real name) is a Catholic, Jordanian Palestinian. One day he went to the appropriate gov't office to register as a minority. He was told, regretfully, that there were to few of his ilk to be so registered. Go figure.

Exactly how was this kid promoting religion?
Was he button holing people to get them to chapel? Was he offering free tickets to the Knights of Columbus bingo night? Its a shame this nation has forgotten the first amendment.

The 9th court is the logical outcome of the Left's strategy of ursurping government by employing the judiciary to force law down our throats that no legislature would ever pass.

Another drive by comment from Lefty two shoes
We're all waiting for the 9th to pass a love a Christian day.

I was shocked to hear thatbonly one member of your family was gay. Must have been your mom. I always thought you were the love child of Janet Reno and Hillary.

The Fed's are going to step down into this now...?
This sort of thing should be up to the school district. My take on this is that the administration of any school is incompetant if it allows: gang colors, hip-hop pants, revealing tops, any shirt on the boys without a collar, short pants on the boys, flip-flops or baseball caps on anyone. Ever. Appropriate Dress Codes.

Political, religious or social messages printed on T-Shirts? Nope. And any sort of name calling, bullying or confrontational behavior? Summary suspension.

They are minors until they are 18. Be adults! Treat the children like children. Why do we think that children should have such opinions?

This is one of the problems we have in America trying to sustain a rational society from generation to generation. We let the twelve-year-olds invent their own culture every five years. By asking around among themselves!

When people from a proper culture immigrate to the US their greatest sacrifice is the risk that their children will become Americans.

How in the world can a 15 year old child be a homosexual? Kids in foreign countries have some sense of personal discipline. At least when they are in the classroom. Is it any wonder that their students excel and ours end up working for them, over here? Do the math. This is our fault!

Why is the right obsessed with sex and violence?
You guys seem to be quite happy to resrict our people's rights but when it's your world view under attack then off you go.

Cause its fun to see you and LG mate!
Not something you want your kids to see of course. I mean you simply don't have the figure for high heels and a push up bra there geek. It gets alot better when you drag Eric and his NAMBLA boys into the game though.

Reasonable to the Unreasonable isn't Reasonable NO such thing as Statistical Certainty

No, not even close. Its fairly clear to a really reasonable person that it refers to acts, not people. Its only reasonable to you because you buy into the idea that the person and their inclinations are one.

By the way, there's no such thing as "statistical certainty". Thats why we refer to statistical INFERENCES and why those inferences are qualified with precision intervals and confidence levels. Statistics ipso facto trades certainty for efficiency.

Is there no area where your lack of rudimentary proficiency fails to stop you from publicly displaying that ignorance?

If free speech were limited to the advocacy of truth, then we would have to assume you'd have been bound and gagged long ago.

Hey, Now are you an Endocrinologist?
Obesity is not a lifestyle choice for a great many people. They eat normally and still are outside the parameters of normalcy. Again, you know not of what you speak. I do. I was a fat kid, until I discovered weight training, nothing changed me. Today I still have to exercise 6 days a week to maintain my weight. Not everybody is lucky enough to have the time.

As for homosexuality, a same sex attraction may exist, but acting on it, expressing it through sodomy, is a choice.

No, the Left is obsessed with sex!
Which is why you came up with the idea of "gay" where a person is soley defined by their sexual attractions and practices. It was the left that gave us sex as a spectator sport, telling us that reserving it to private moments was repression, patrimony, etc.

societal tabbos vs human nature
Every society has had sexual taboos of one sort or another and as long as you have those taboos, you're going to have forbidden fruits and people who want to eat them.

The idea of defining someone solely by their sextual attractions started not from the left, but from the conservatives, who started using "homosexual" as a noun, describing a person, rather than an adjective, describing behaviors.

And it's worth noting that not everyone believes the individual personality is made up of isolated little compartments, of which sexuality is only one. There is a philosophy that sexuality in general, is to the human drive and spirit, what the CNS is to the body. The sexual drive is simply not confined to the social catagorization imposed upon it, but influences every other aspect of a person's life, even if only subconsciously at times. As far as I can see, that point of view is just as valid as the (puritanical IMO) view that sexuality is just this one little part of their lives, and they don't define themselves by it.

And as far as gay people defining themselves as such, you apparently don't understand that, to some degree, this is a REACTION to religious depictions of them as horrible, child-molesting, disease-carrying, weak-willed and effeminate perverts. Since straight people don't have that ugly image to confront on a personal level, it is, of course, very easy to sit back and deride gays for identifying with their sexuality.

Not that any of that has anything to do with this article, since this article is about free speech.

Love, Hate and Leftists
"God hates fags" is a substantially different statement from "I will not accept what God has condemned." Comparing the two is like comparing "Kick the d--ned lazy wetbacks out!" to "Our borders are totally unsecured at a time when we face a threat of international terrorism, and we have 13 million workers living off of our welfare dollars to prove it." One is a statement intending to cause offense and possibly start a fight, the other is a rational, reasonable argument. One of them can be legally regulated, the other one cannot.

However, this has never seemed to matter to leftists. Anyone who says we should secure our borders is called a racist. Anyone who suggests that women and men are the slightest bit different is called a sexist. Anyone who suggests that homosexuality might be wrong is called a homophobe. All of these accusations are ridiculous, and intended to frighten people away from any debate on these issues.

As a further point, I would suggest that all the liberals out there review your definitions of tolerance and acceptance. People tolerate things that bother us, but which exist and must be dealt with. For example, we tolerate crying babies on the subway. Acceptance is learning not only to accept something, but also to acknowledge it as normal and legitimate. The two are miles apart.

The fact that an individual believes homosexuality is wrong based on their religion does not mean they hate or fear homosexuals. Similarly, if I declare that eating meat is a morally acceptable thing t do, it does not mean I hate vegetarians. I happen to be a Christian, and I believe that by doing what they do homosexuals are endangering their souls. Despite this fact, I do not plan to burn down The Manhole or shoot my local drag queen. If I did either, that would be an example of hate. Moral disapproval is not hatred, it is an ethical standpoint.

Tolerance simply means living with people who do and say things we do not like, especially if they are not injuring us in the process. It does not mean we have to consider what they do morally right. As MarkTheGreat pointed out, the real irony here is that those who argue "intolerance silences" are trying to silence those they are intolerant of with the courts.

Why is the Left obsessed... death and communism?

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