Tech Central Stationhas an interesting piece on a recent 9th Circuit Court of Appeals decision:
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.
I know, it’s Tech Central Station, but what the article says is absolutely true. The Judge could very easily have stated that schools have an unencumbered right to limit speech inside their walls if it causes a disruption of the educational process. That type of ruling has been made on numerous occasions and is, frankly, correct, no matter how much I hate the idea that schools can control speech just because it happens within their doors.
That being said, this decision doesn’t do that. As the column notes, it sets conditions for what’s okay to put a stop to if you’re a school. That’s my problem with it.
You’ve now created a situation where certain “speech” is automatically allowed to be censored, and now those rules don’t apply to others. For example, gender (one of the big ones) isn’t covered, and will be covered later. But let’s extrapolate this even more. What about political affiliation? I imagine it isn’t easy for a conservative student in California, seeing as they’re a clear minority in most of the state. What about weight? I mean, if you’re a fat kid, do you have to put up with nastiness?
It would seem that this case was decided with a purpose. To protect gay students. That’s all well and good, and I have no problems with protecting people from being tormented for any reason. However, my problem lies with the definition of what schools can restrict based on. At this point, according to the court decision, there are a lot of groups who are fair game. In their overzealousness, they’ve created a monster.
I can’t help but think back to Lawrence v. Texas (the infamous sodomy case) when the Supreme Court created some strange new idea of the right to privacy in the bedroom, in essence saying anything that went on in your bedroom was free from the interference of the state. Instead of overturning the original decision based on the Equal Protection Clause, which would’ve been smart, they overturned it based on some vague right to privacy that you don’t really have.
Two examples of courts going overly specific in their rulings. Both of these are going to be jurisprudence fodder for years to come and I have a feeling the Supreme Court is going to strike this ruling down relatively easily.
[tags]courts, legal, equal protection, free speech, supreme court, 9th circuit, 9th circuit court of appeals[/tags]