Alablawg

Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Friday, April 21, 2006

An Excursion

From Alabama to the 9th Circuit U.S. Court of Appeals, which had this to say yesterday:

May a public high school prohibit students from wearing T-shirts with
messages that condemn and denigrate other students on the basis of their sexual orientation? Appellant in this action is a sophomore at Poway High School who was ordered not to wear a T-shirt to school that read, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" handwritten on the front, and "HOMOSEXUALITY IS SHAMEFUL" handwritten on the back. He appeals the district court's order denying his motion for a preliminary injunction. Because he is not likely to succeed on the merits, we affirm the district court's order

First, this does not mean the school can prohibit the shirt. The student is currently suing the school for the right to wear the shirt. As part of that suit, he requested an order that would allow him to wear the shirt during the pending suit - a preliminary injunction. To get the injunction he had to show, among other things, a likelihood of success at trial. The 9th Circuit says he probably will not win at trial.

But he still may. The trial court gets to decide whether the student can wear the shirt. After hearing all the evidence and arguments, it may reach a contrary conclusion. It may not. In any event, the 9th will review this case again, I am sure.

Second, the majority opinion and the dissent are great examples of why free speech is either absolute or else non-existent. Long ago, Scotus decided that the first amendment protects the speech of students. It does not, however, do so with the same vigor as it protects adults. Schools get to limit speech that would disrupt the educational environment, or do something similarly pernicious. Anyone who has ever been a student knows that administrators and teachers think all speech disrupts the environment. Furthermore, courts defer to the authorities findings on the disruption. The result? Students get free speech when schools want to give it to them.

I am not arguing that students should have absolute free speech. I am just saying that when you start making 'offensiveness' exceptions the result is no more free speech. You can not know ahead of time whether some authority type will deem your speech offensive, or disruptive. Hence, you can never speak without fear of penalty.

For some better commentary, see this, and this.