Supreme Court

Supreme Court Refuses to Hear First Amendment Case Challenging School Ban on American Flag Shirts

SCOTUS declines to review high-profile First Amendment dispute.

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Credit: White House / Flickr.com

In an order issued today without comment or explanation, the U.S. Supreme Court declined to hear a high-profile First Amendment case challenging a California school district which banned several students from wearing shirts bearing the image of the American flag.

The case originated in 2010 when the Morgan Hill Unified School District forbid several students from wearing American flag-themed shirts on Cinco de Mayo over fears that their attire would spark racial violence between white and Hispanic students. School officials told the offending students to either turn their shirts inside out or go home. The students went home and subsequently filed a legal challenge alleging that the First Amendment had been violated because the school allowed a "heckler's veto" to trump their rights to peaceful free expression.

In February 2014, those students lost at the U.S. Court of Appeals for the 9th Circuit. "School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances," the 9th Circuit declared in Dariano v. Morgan Hill Unified School District. "As a consequence, we conclude that school officials did not violate the students' rights to freedom of expression." Notably, the 9th Circuit claimed that its ruling should be distinguished from the U.S. Supreme Court's landmark 1976 precedent in Tinker v. Des Moines Independent Community School District, in which the Court invalidated the suspension of three public school students for wearing black armbands in silent protest of the Vietnam War. According to the Supreme Court in Tinker, while school officials may have based their actions "upon their fear of a disturbance from the wearing of the armband… in our system, undifferentiated fears or apprehension of disturbance is not enough to overcome the right to freedom of expression."

To say the least, the 9th Circuit's judgement in Dariano would appear to be in conflict with the central free speech holding of Tinker. In fact, none other than Mary Beth Tinker and John Tinker, two of the original plaintiffs from that 1976 case, filed a friend of the court brief supporting the students against the Morgan Hill Unified School District in their appeal to the U.S. Supreme Court. "If students learn that threatening speakers is an effective way to suppress speech," the Tinkers told SCOTUS, "this will produce more threats, and more suppression of a wide range of other speech. And beyond this, even peaceful students will learn that free speech must yield whenever its opponents are willing to threaten violence—a message antithetical to all things this Court has tried to convey about the First Amendment."

Yet despite these strong free speech arguments, and despite the 9th Circuit's questionable adherence to First Amendment precedent, the U.S. Supreme Court declined to hear the case. Today's order leaves the 9th Circuit's decision in place.

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  1. Probably for the best – 10-to-1 they’d have used the case to narrow Tinker.

  2. Supremes were too busy trying to figure out how they’re going to save Obamacare.

  3. In February 2014, those students lost at the U.S. Court of Appeals for the 9th Circuit. “School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances,”

    Calling school administrators’ precognitive abilities into question was always a losing strategy.

    1. As nice a legal definition of the heckler’s veto as you’ll ever see.

      And perfectly legal for the State to use as a pretext for limiting speech.

      I guess we add this one to the de facto amendments to the Constitution. Right after the exclusion of commercial speech from the 1A.

      On the plus side, this shows that our SCOTUS is deferring and being restrained just as hard as they can. I eagerly await they day when they wave off some blatant violation of the plain language of the Constitution with a two-word opinion:

      “Seems legit.”

      1. “Deferring and being restrained”?
        I, for one, don’t want them to defer to the 9th circus court of schlemiels, nor to refrain from sticking with a prior ruling granting freedom to American citizens, especially when it is about displaying the flag of THIS COUNTRY.
        The only thing that can be said is that those, who were suspected of having a violent outbreak at the patriotic display, are now de facto to be treated as inherently more violent than Americans confronted with a protest of an armed conflict.

      2. Commercial speech isnt excluded from 1A protection. It’s subject to what is essentially a lower level protection, but isn’t completely exempt (sort of like “nonobscene porn”, whatever that is).

  4. This seems to me to be an easy decision and a brief case to decide, since it’s heavily predicated upon the Tinker case. This Supreme Court is continuing to disappoint.

    1. The “bong hits for Jesus” case ruined everything.

  5. “School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances,”

    ‘Congress shall make no law unless top men think something bad might happen’.
    That’s what it says in the copy the Supremes used today.

  6. Only the Establishment Clause in the First Amendment matters to this Supreme Court, apparently.

  7. School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances

    I missed the part of the 1A that carves out an exception based on the anticipated fear of bureaucrats.

  8. even peaceful students will learn that free speech must yield whenever its opponents are willing to threaten violence

    This. The court is reinforcing the idea that violence is the answer.

    1. And yet the rest of the legal system won’t accept this as a defense when we start punching people we disagree with.

  9. When I see the level of thought and reason often times applied by the highest courts in the land, it really is disturbing how intellectually bankrupt they are. It gets old even saying it. That whole ruling really is just an example of FYTW. There is no legal basis for what the 9th Circuit ruled and they didn’t even pretend to have one.

  10. “School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances,” the 9th Circuit declared

    Then, the students tarred/feathered the judge, and strung up the school admins. for a clear violation of their rights. Their response was tailored to the circumstances.

  11. Would a flag of Imperial Spain be OK?

    1. Since this action was a response to the Mexican students parading around the Mexican flag, the year before, with no concerns of “violence or substantial disruption of or material interference with school activities”, then yeah, it would be OK to display the flag of a nation foreign to those who can hold their emotions in check – unlike the ones the school was anticipating a violent response from.

  12. “School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances,” the 9th Circuit declared in Dariano v. Morgan Hill Unified School District. “As a consequence, we conclude that school officials did not violate the students’ rights to freedom of expression.”

    That’s a lot of words to say “Heckler’s Veto.”

  13. So the school expects violence from the Mexican community towards those who honor the American flag but no violence toward those who display a foreign flag on American soil.

    1. that being said since its legal to burn the American flag would it be okay then to burn the Mexican flag on Cinco de mayo?

      1. If doing so would lead an agent of the state to “anticipate violence”, their response (criminalizing the burning of the Mexican flag) would be tailored to the circumstances.

        Seem legit.

  14. The case originated in 2010 when the Morgan Hill Unified School District forbid several students from wearing American flag-themed shirts on Cinco de Mayo over fears that their attire would spark racial violence between white and Hispanic students.

    In a sane world, only shirts bearing a representation of the French Second Republic would raise fears about sparking violence on the fifth of May.

    1. In a sane world, only shirts bearing a representation of the French Second Republic Empire would raise fears about sparking violence on the fifth of May.

      FIFM

      1. Every May 5th, I wear a tri-color tie.

        Nobody gets the joke.

        1. The same ones that don’t get flying a Mexican flag on September 16th either, I bet.

        2. You kinda do have to feel bad for any people whose day of national pride is the result of defeating the French in battle.

          1. “We few. We happy few. We band of brothers…”

          2. Eh. The French had a pretty good run until WW2.

            And hell, they’re the only reason we’re not speaking Arabic, thanks to Odo and Charles Martel.

        3. I make a point of celebrating the Battle of Camar?n every April 30 by drinking French wine and listening to Edith Piaf singing “Non, je ne regrette rien.”

          1. Kids should get some 2-sided shirts: Old Glory on one side, Bear Flag Republic on the other.

            That ought to cause the Blobocrats to scratch their pointy l’il heads.

            Kevin R

  15. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link,
    Go to tech tab for work detail ????????????? http://www.jobsfish.com

  16. Wonder what Obama thought of Johnny Gomes’ choice of attire?

  17. So, is it my understanding that all you have to do to get your way is to make sure the school board shits their pants over what your group might do?

  18. So, Captain America can visit the school after all.

  19. Nothing says “free speech” like a State run celebration of the Mexican flag that prohibits any personal display of an American flag, imposed on captive minors.

  20. And beyond this, even peaceful students will learn that free speech must yield whenever its opponents are willing to threaten violence

    I missed anything about violence. And it’s a safe bet that a majority of kids wearing US flags at that time will be quite menacing toward the hispanics. We all attended high school, right?

    I don’t have near enough information to judge this. I’d want to know how the “event” was promoted, before being even qualified to judge.

  21. Between the two of them, I think Paul has a better chance at the nomination,

    I wish we could be certain that NO extreme social conservatives had any shot at the nomination in the party of Goldwater and Reagan. And they’d get slaughtered in the general anyhow.

    Nobody even needs pandering to the extreme socons.

    1. AAAAK — wrong page! Sorry.

  22. Damon, I don’t care which dictionary told you differently, the past-tense you want is “forbade,” (though some offer “forbad” as equivalent, and I myself have used the latter on occasion). “In 2010, the school district forbid several students from wearing American flag-themed shirts,” is a present-tense sentence speaking about the past: A neat trick when you can do it, but here, grammar doesn’t permit.

  23. I would love to hear 98% of the students showed up one day, with US flag shirts! I doubt the educators would be sending all of them home. It would shut the, entire, school down! I bet, NO PAY for the educators would affect their attitudes! Go for it, kids!

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