How could court find U.S. flag T-shirt disruptive?

Many may react with surprise that a federal court could find that students’ wearing American flag T-shirts could be found “disruptive” and subject to censorship in a public school. That’s what happened last week in Dariano v. Morgan Hill Unified School District, a federal district court decision in California.

Three concepts explain how this could happen in a society that’s supposed to preserve and protect freedom of speech: (1) totality of the circumstances, (2) heckler’s veto and (3) deference to school officials.

“Totality of the circumstances” means school officials can look at nearly all factors in the school in deciding whether they can reasonably forecast a substantial disruption by student expression, in accordance with Tinker v. Des Moines Independent Community School District (1969). In Dariano, U.S. District Judge James Ware considered that the principal had seen many gang-related fights in the past six years and that there was a hostile exchange between students on Cinco de Mayo in 2009, a year before the T-shirt incident.

When a totality-of-the-circumstances approach is used in constitutional law, it usually means that the government will prevail and the individual asserting a constitutional claim will lose. It happens all the time in search-and-seizure cases under the Fourth Amendment.

“Heckler’s veto” is a more controversial concept in free-speech law. It refers to the phenomenon that a hostile audience, upset at a speaker’s expression, can create an unpleasant enough situation to impose censorship — a veto of sorts. When a court examines whether speech may cause a substantial disruption, it often looks not to the speaker but to the listeners. Thus the heckler’s-veto syndrome means rowdy listeners have a perverse incentive to create a disruption to silence a speaker.

In considering whether there is a reasonable forecast of substantial disruption under Tinker, many school officials ignore whether the disruption or likely disruption was caused by the speakers or their opponents. Many courts simply apply the Tinker test broadly without considering whether they are allowing listeners’ hostile reactions to speech control and limit a speaker’s message. A more appropriate response by school officials would be to punish those who create disruptions, rather than the speaker — in this case, the wearers of American-flag shirts.

“Deference to school officials” is a reality in school-law cases. Judge Ware wrote that decisions in other circuits “have demonstrated broad deference to the decisions of school administrators with regard to student safety.”  School officials have a difficult job in maintaining a safe learning environment and protecting constitutional rights. They deserve some deference – but not unyielding, all-encompassing deference.

In 1943, Justice Robert Jackson wrote in West Virginia Board of Education v. Barnette: “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

When courts sanction a broad “totality of the circumstances” approach, endorse the heckler’s veto and show overwhelming deference to school officials, the net result will be censorship.

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