H.S. Flag Case Merited Rehearing, Judges Say

(CN) - In declining to revisit a California high school's handling of students who promoted the American flag on Cinco de Mayo, the 9th Circuit condoned a free-speech violation, three judges complained Wednesday.

When several students of Live Oak High School in Northern California wore shirts bearing images of the U.S. flag on Cinco de Mayo in 2010, some of their classmates reported to Assistant Principal Miguel Rodriguez that there might be problems between Caucasian and Hispanic students.

Allegedly concerned for the safety of those students amid reports of potential race-related violence, administrators advised at least two students to turn their flag shirts inside out or remove them.

The students refused and were sent home. They did not dispute that they were at risk of violence.

Three students, only referred to by their initials in court documents, sued the Morgan Hill Unified School District, as well as Live Oak High School's principal and vice principal, alleging violations of their rights to freedom of expression, equal protection and due process.

The case made its way up to the 9th Circuit, which ruled against the students in February. A three-judge appellate panel found that the school's decision was justified based on the anticipation of violence or disruption of school activities caused by the reaction of other students to the American-flag clothing.

A majority of the court voted against rehearing the case en banc Wednesday, prompting three judges to voice their dissent that the reaction of other students to clothing is not a legitimate basis for student-speech suppression.

Judge Diarmuid O'Scannlain, joined by Judges Richard Tallman and Carlos Bea, disagreed with the panel's assertion that the source of the threatened violence was irrelevant.

"Apparently requiring school officials to stop the source of a threat is too burdensome when a more 'readily-available' solution is at hand, namely, silencing the target of the threat," O'Scannlain wrote. "Thus the panel finds it of no consequence that the students exercising their free speech rights did so peacefully, that their expression took the passive form of wearing shirts, or that there is no allegation that they threatened other students with violence. The panel condones the suppression of the students' speech for one reason: other students might have reacted violently against them. Such a rationale contravenes fundamental First Amendment principles."

The panel ignored precedent that affirmed the heckler's-veto doctrine, which is the principle that the government cannot restrict speech because it might cause discomfort, fear or anger, O'Scannlain said.

"Live Oak's reaction to the possible violence against the student speakers, and the panel's blessing of that reaction, sends a clear message to public school students: by threatening violence against those with whom you disagree, you can enlist the power of the state to silence them," the dissent states. "This perverse incentive crated by the panel's opinion is precisely what the heckler's veto doctrine seeks to avoid."

Allowing such a view opens the door to the suppression of any viewpoint opposed by a violent band of students and will lead the "demands of bullies" to "become school policy," he added.

Highlighting 7th and 11th Circuit rulings that invoked the heckler's veto doctrine, the dissenters said that a student's speech cannot be suppressed based on a possible violent reaction.

"The panel's holding, then, represents a dramatic departure from the views of our sister circuits," O'Scannlain wrote. "Yet, one would never know it from reading the panel's opinion, since the contrary decisions of those circuits are barely mentioned and completely mis-characterized."Morgan High Unified School District Superintendent Steve Betando said in a statement that the panel's decision "confirms that there is a delicate balance that must be achieved in protecting students' First Amendment rights with the operational and safety needs of school."

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