Mexican Heckler’s Veto over White American Kids in CA Cinco de Mayo First Amendment Case: Ninth Circus Ruling “Permits the Will of the Mob to Rule Our Schools”; Parents Appealing to U.S. Supreme Court

Re-posted by Nicholas Stix

Thanks to reader-researcher RC for this article.
 

Will U.S. flag ever fly on student T-shirts?
“Approval of mob rule” headed for Supreme Court fight
By Bob Unruh
December 15, 2014
WND

A 9th U.S. Circuit Court of Appeals ruling criticized as an approval of “mob rule” in public schools, has been taken to the U.S. Supreme Court.

The case arose in 2010 when school officials at Live Oak High School in Morgan Hill, California, south of the Bay Area, barred students from wearing shirts bearing the U.S. flag on the Cinco De Mayo Mexican holiday, “because other students might have reacted violently.”

The “mob rule” criticism came from 9th Circuit Judge Diarmuid O’Scannlain in his minority dissent of the court’s decision not to rehear the case.

“It is a foundational tenet of First Amendment law that the government cannot silence a speaker because of how an audience might react to the speech,” he wrote. “It is this bedrock principle – known as the heckler’s veto doctrine – that the [majority] panel overlooks, condoning the suppression of free speech by some students because other students might have reacted violently,” he wrote.

“In doing so, the panel creates a split with the 7th and 11th Circuits and permits the will of the mob to rule our schools,” he said.

The request for review by the Supreme Court was announced Monday by Freedom X and the Rutherford Institute, which are working on the case with the Thomas More Law Center.

The suit was brought on behalf of students who were told by school officials, Principal Nick Boden and Assistant Principal Miguel Rodriguez, to turn their flag-themed shirts inside out or remove them.

The parents of the students named in the case are John and Dianna Dariano, Kurt and Julie Ann Fagerstrom, and Kendall and Joy Jones.

Freedom X said the students sued the district “after their Mexican-American principal, claiming to be acting out of concern that Mexican students might retaliate with violence, ordered them to remove their American flag T-shirts or turn them inside out.”

See the full range of flags available at the WND Superstore, from the Star-Spangled Banner to the Betsy Ross flag, the Gadsden Flag, Coast Guard, Navy, Marine, Army and Air Force flags, as well as the Navy Jack and dozens more.

Freedom X President Bill Becker said the 9th Circuit essentially concluded that the U.S. Constitution “imposes a one-day-per-year calendar restriction on the right to display our patriotism.”

“The First Amendment does not give some people free speech rights while denying it to others,” he contended. “It’s unbelievable that we need to remind the courts that American students at an American school have just as much right to celebrate their heritage as Mexican students have. If the principal had banned Mexican-American students from wearing Mexican flag T-shirts on Memorial Day, you can bet the Ninth Circuit would have struck that down.”

Becker said that under U.S. law, “no one has a right to deprive another citizen of that freedom just because they take a contrary view on issues of public concern, and the court has earlier stated that this First Amendment principle applies equally to public school students.”

John W. Whitehead, president of the Rutherford Institute, said there are “all kinds of labels being put on so-called ‘unacceptable’ speech today, from calling it politically incorrect and hate speech to offensive and dangerous speech, but the real message being conveyed is that Americans don’t have a right to express themselves if what they are saying is unpopular or in any way controversial.”

“Whether it’s through the use of so-called ‘free speech zones,’ the requirement of speech permits, or the policing of online forums, what we’re seeing is the caging of free speech and the asphyxiation of the First Amendment,” he said.

The conflict arose during the May 5, 2010, Cinco de Mayo “brunch break” at the school when the students were told by Rodriguez, the vice principal, they could not wear their pro-American shirts. They were told to remove them or turn them inside out.

The students refused.

Rodriguez then, according to the court records, “lectured the group about Cinco de Mayo, indicating that he had received complaints from some Hispanic students about the stars and stripes apparel, and again ordered that the clothing be covered up to prevent offending the Hispanic students on ‘their’ day.”

The principal, Boden, allegedly affirmed the order.

The 9th Circuit “ruled that school officials could forbid the American flag apparel out of concerns that it would cause disruption, even though no disruption had occurred.”

The petition said the “question presented is whether the 9th Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts because other students might react negatively to the pro-America message, thereby incorporating a heckler’s veto into the free speech rights of students contrary to Tinker v. Des Moines Independent Community School District … and the decisions of other United States courts of appeals.”

The filing explained that a year earlier, a Mexican student paraded around campus with a Mexican flag, so “some Caucasian students” put an American flag on a tree.

“In response to the white students’ flag-raising, one Mexican student shouted ‘f— them white boys, f— them white boys.” At that point, when Rodriguez asked them to stop using such language, they responded, “But Rodriguez, they are racist. They are being racist. F— them white boys. Let’s f— them up.”

But in 2010, there were no such disruptions, the filing said.

“If this decision is permitted to stand, it will have a detrimental impact on all student speech by rewarding violence over civil discourse and effectively invalidating Tinker. As Judge O’Scannlain forewarned, ‘In this case, the disfavored speech was the display of an American flag. But let no one be fooled: by interpreting Tinker to permit the heckler’s veto, the panel opens the door to the 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 Che Guevara, or Martin Luther King, Jr., or Pope Francis. It might be a student wearing a President Obama ‘Hope’ shirt, or a shirt exclaiming ‘Stand with Rand!’ It might be a shirt proclaiming the shahada, or a shirt announcing ‘Christ is risen!’ It might be any viewpoint imaginable, but whatever it is, it will be vulnerable to the rule of the mob. The demands of bullies will become school policy.’”

Explained the petition: “In the final analysis, the 9th Circuit’s decision affirms a dangerous lesson by rewarding students who resort to disruption rather than reason as the default means of resolving disputes. … Because school officials perceived that those who oppose the message conveyed by petitioners’ American flag clothing would adversely react to the message, petitioners were not permitted to speak. This not only creates perverse incentives for student hecklers, it effectively turns the First Amendment on its head.”

WND reported a small group of protesters who waved U.S. flags in front of Live Oak High School on the May 5 Mexican holiday this year were branded as racist.