Protect students' right to display the American flag despite "hecklers," free-speech icons urge Supreme Court

Two generations after the Supreme Court recognized students’right of free expression in the Tinker case, today’s Court is being asked to reaffirm that the Tinker ruling really means what it says – by the Tinker family itself.

Brother-and-sister plaintiffs John and Mary Beth Tinker filed a friend-of-the-court brief urging the Court to take up the case of Dariano v. Morgan Hill Unified School District, in which students lost their First Amendment challenge to a school ban on American flag apparel during a Latino heritage event.

In a February 2014 ruling, three judges on the Ninth Circuit U.S. Court of Appealsfound no First Amendment violation in a California school’s decision to orderstudents to remove American flag apparel during a Cinco de Mayo celebration in2010. The school justified the ban by pointing to a near-altercation at thesame event a year earlier, when a Latino student felt white students were goadingand taunting him by waving an American flag and chanting “U-S-A!”

Applying the 1969 Tinker case, which permits schools torestrict speech if it portends a “material and substantial” disruption oncampus, the Ninth Circuit decided that the school acted lawfully. The historyof racial tension, and the prospect that tensions might escalate in reaction tostudents’ American flag shirts “made it reasonable for school officials toproceed as though the threat of a potentially violent disturbance was real.”

But twopeople who know the Tinker casebetter than anyone – the Tinkers themselves – say the Ninth Circuit got itwrong.

In their amicus brief, the Tinkers say schoolsshouldn’t be allowed to ban provocative speech just because people who disagreemight try to silence the speaker by lashing out – what the Supreme Court hastermed a “heckler’s veto.”

“This caseis an ideal vehicle to clarify the holding of Tinker, to reaffirm the vitality of the ‘heckler’s veto’ doctrine,and to prevent students (both the potentially violent and the peaceful) fromlearning a message that is the very antithesis of the First Amendment: thatspeech can be effectively suppressed by threat of violence,” says the brief,which likens the Morgan Hill students’ flag apparel to the Tinkers’ own Vietnamwar protest armbands, which also provoked harsh words from classmates yet weredeemed constitutionally protected.

The briefwas authored by a “dream team” of First Amendment litigators including RobertCorn-Revere of Davis Wright Tremaine LLP and Eugene Volokh of the UCLA Schoolof Law.

The Courthas hesitated to accept student-speech cases, rejecting several petitions in2013 that asked for clarification of schools’ punitive authority over whatstudents say on off-campus social media. Most recently, the Court refused to consider a federal appeals court’s decision protecting the right to wearcancer-awareness wristbands bearing a word – “boobies” – that a Pennsylvaniaschool tried to forbid as “lewd.”

But the Dariano case presents unusually temptingfacts. It involves exactly the kind of speech – the American flag – that theCourt’s Republican-appointed majority would be most inclined to regard asworthy of constitutional protection.

And there was substantial opposition to the Dariano outcome within the Ninth Circuit itself. When the court refused to accept the February 14 opinion for reconsideration by the full (“en banc”) lineup of Ninth Circuit judges, Judge Diarmuid O’Scannlian issued a resounding dissent joined by two colleagues.

Rebukingthe court for refusing to rehear the case, O’Scannlian wrote that the Dariano ruling “permits the will of themob to run our schools.” The entire dissenting opinion is well worth readingfor its forceful defense of freedom of expression in schools, even when theexpression is challenging and suppressing it would make life easier for schoolofficials. But one passage in particular is the judicial equivalent of amic-drop:

In this case, the disfavored speech was the display of anAmerican flag. But let no one be fooled: by interpreting Tinker to permit the heckler’s veto, the panel opens the door tothe suppression of any viewpoint opposed by a vocal and violent band of students.The next case might be a student wearing a shirt bearing the image of CheGuevara, or Martin Luther King, Jr., or Pope Francis. It might be a studentwearing a President Obama “Hope” shirt, or a shirt exclaiming”Stand with Rand!” It might be a shirt proclaiming the shahada, or ashirt announcing “Christ is risen!” It might be any viewpointimaginable, but whatever it is, it will be vulnerable to the rule of the mob.The demands of bullies will become school policy. That is not the law.