Ninth Circuit Short Circuits on Flag Shirts
Commentary by Sanford D. Horn
March 4, 2014
More anger than incredulity simply because little emerging
from the 9th U.S. Circuit Court of Appeals should surprise anyone
with a pulse who has been paying attention to the machinations of that body.
Yet, a disturbing ruling made by the 9th
Circuit Court sounds the alarm bells of the loudest wakeup call imaginable – a cacophony
of fear, sadness, and surrender – shaking this nation to its very core. Threats
of racial violence have vanquished the First Amendment to the United States
Constitution.
In a much ballyhooed case dating back to May 5, 2010, five
Live Oak Hill High School students arrived at school clad in t-shirts sporting
the American flag. They were given the option of turning the shirts inside out
or returning home with an excused absence because of numerous threats of racial
violence. The 9th Circuit Court determined that the concerns
regarding the threats of violence overshadowed the students’ First Amendment
right of free expression.
In reaching its decision, the 9th Circuit
Court relied upon the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District. In Tinker several junior high and high
school students protested the war in Vietnam by donning black armbands in
school. School officials banned the armbands just two days prior to the
students appearing in the schools wearing them.
The students were subsequently sent home and suspended
until such time as they returned to school sans armbands. The students’ claimed
their First Amendment rights of free speech and expression were violated by Des
Moines – after all, the First Amendment does not cease to exist upon entering
the school.
The Supreme Court, in a 7-2 decision, supported the
school officials’ authority to set rules and policies provided they are “consistent
with the First Amendment rights of students and teachers.”*
Continuing with Tinker,
“wearing an armband as a silent form of expressing an opinion was, according to
the Court, ‘akin to pure speech’ and involved ‘primary First Amendment rights.’”*
Tinker, for it
to be valid, relies upon the key word – consistent. “The Court stressed the
fact that school officials had permitted other political symbols to be worn.
For example, some students wore political campaign buttons, and others wore the
Iron Cross, a symbol of Nazism.”* Only the anti-Vietnam Conflict armbands were
singled out for exclusion, restriction, and eventually punishment – not even a
symbol of Nazism was deemed inappropriate – which even in 1969 Iowa is both disturbing
and lacking consistency.
If anything, Tinker
should support the First Amendment right of the California students to wear their
American flag t-shirts on Cinco de Mayo, or any other day, for that matter. Are
flags in classrooms being taken down on Cinco de Mayo? How about the flags
flying outside the school, yet still on the campus property? Are they raised on
May 5th?
The Live Oak High case, where the 9th Circuit
Court upheld a school’s decision denying students the right of expression in
the wearing of t-shirts depicting the American flag lacks the consistency rooted
in Tinker. Are other t-shirts with
designs barred from this school? Are other dates subject to wardrobe review and
restriction?
Cinco de Mayo celebrates victory by the Mexican army over
the then far superior French army in the May 5, 1862 Battle of Puebla, yet is
widely observed in the United States by those of Mexican heritage. While this “holiday”
is typically enjoyed by many of non-Mexican heritage with the enjoyment of
Mexican beer and food, there is no reason why Americans should be barred from
wearing t-shirts emblazoned with American flags. Why not ban the wearing of
t-shirts with French flags?
Should other battles be observed in this same manner –
with threats of racial or ethnic violence to prevent people from donning
American flag t-shirts? How about on April 25 for the celebration of the Dutch
victory over Spain in the 1607 Battle of Gibraltar? How about September 12 for
the celebration of Poland’s victory over the Ottomans in the 1683 Battle of
Vienna? How about January 14 for the celebration of the French victory under
Napoleon over the Austrians in the 1797 Battle of Rivoli? How about September 1
for the celebration of the British victory over the Afghans in the 1880 Battle
of Kandahar? How about December 12 for the celebration of Finland’s victory
over the Soviet Union in the 1939 Battle of Tolvajarvi?
Or, if battles are not the focal point of celebration and
ethnic pride is, should American flag t-shirts be banned on St. Patrick’s Day
if Irish-Americans threaten ethnic violence? How about Columbus Day? How about Israel
Independence Day?
Moreover, when did American society reach the deleterious
point of threats of violence ruling the day? Students opposed to the wearing of
American flag t-shirts threatened racial unrest and outright violence – and their
threats were used to deny First Amendment rights of speech and expression by
American students with American flags in American schools.
The threat of violence from the Mexican and
Mexican-American students at Live Oak High should have been thwarted and
punished based upon the 1919 United States Supreme Court case Schenck v. United States.
Charles Schenck, during World War I, was accused, along
with other Socialist party members, of violating the 1917 Espionage Act –
prohibiting “destruction of military recruiting.”**
Schenck protested United States involvement in the Great
War via anti-war pamphlets. He argued that the Espionage Act “prevented full
public discussion on the war issue,”** and thus violated his First Amendment
rights as found in the Constitution. Schenck lost his Supreme Court appeal on
the grounds of what Justice Oliver Wendell Holmes defined as a “clear and
present danger.”**
“Holmes’s analysis considered the context of the speech
as well as the intent of the persons who sent the leaflets.”** INTENT. What is
the intent of the Live Oak High School students threatening violence should other
students don the American flag t-shirts in an American school? Clearly,
violence; disruption of school activities, while wearers of the t-shirts
intended to simply go through their school day wearing t-shirts adorned with
the American flag.
“Holmes distinguished wartime and peacetime contexts and
concluded that Schenck’s words constituted such an evil since the statutes
applied to conspiracies as well as actual obstruction of the military. Under
the statute the action did not have to be successful in order to violate the
law.”**
The threats – whether carried out or not, present a clear
and present danger and violate the law as outlined in Schenck. Those Live Oak High students issuing the threats of racial
violence and disruption of daily school activities are the ones who should have
been punished. After all, with the virtual zero tolerance policies regarding
bullying, why were the threatening students not suspended? Instead their
miscreant behavior was rewarded by the 9th Circuit Court out of
fear. This case should absolutely be appealed to the United States Supreme
Court.
Students wearing t-shirts with American flags, Mexican
flags, another country’s flag, or no flag at all should be both permitted and
welcomed on campus in an effort to demonstrate First Amendment freedoms of
speech and expression. In fact, such an allowance would be analogous to what
Schenck himself wanted – “full public discussion of the war issue,” sans an
actual war – or not.
As for the distinguishment made by Justice Holmes in 1919
between wartime and peacetime contexts, there are many who would aver that we
the people are locked in a culture war for the soul of America. The definition
of a culture war may be nebulous, but the results could prove catastrophic to
the future of this country and its way of life. The United States will either
go the way of the Roman Empire after its roughly 300 years and disappear as it
was known, or the people will return to the words of the Founding Fathers.
The case of the Live Oak High School is bigger than
simply denying students the right to freely express themselves while allowing
bullies to threaten force and succeed. Upon the founding of the United States
of America following victory in the Revolutionary War over King George III and
Great Britain, Benjamin Franklin was queried as to the style of government to
which the new nation would adhere – a republic or a monarchy. “A Republic, if
you can keep it,” responded Franklin. It is up to we the people to keep and
maintain the Republic. The maintenance therein is the genuine challenge,
especially considering the growing number who have either not learned about the
history of this Republic or simply do not care.
The violent and those who threaten violence should not be
rewarded, nor should the wordless wearers of t-shirts be thwarted in the
pursuit of their First Amendment rights of speech and expression – lest the
future of the Republic suffer gravely.
While Franklin was ebulliently prophetic about the
precarious nature of the Republic from its inception, former President Ronald
Reagan 200 years later saw the workings of the people both in and out of
government and offered these equally vital words:
“Freedom is never more than one generation from
extinction. We didn’t pass it on to our children in the bloodstream. It must be
fought for, protected, and handed on for them to do the same, or one day we will
spend our sunset years telling our children and our children’s children what it
was once like in the United States where men were free.”
Sanford D. Horn is
a writer and educator living in Westfield, IN.
*The Oxford
Companion to the Supreme Court of the United States, P. 875
** The Oxford
Companion to the Supreme Court of the United States, P. 758
