Free Speech

Liberty Comes to Liberty High School—"Trump Border Wall" T-Shirt Allowed

But it took a federal court order.

|The Volokh Conspiracy |

Liberty High School in Oregon barred student Addison Barnes from wearing this T-shirt to school, but Tuesday a federal district judge issued a temporary restraining order requiring the school to allow the shirt. The Oregonian (Maxine Bernstein) writes:

The school district is entitled to be concerned about the response of other students to the T-shirt, [U.S. District Judge Michael W. Mosman] said. But the "thin" court record so far offers little support for the district's argument that the shirt could "substantially disrupt" the school, he said.

"There's not enough to go on here to show that sort of legitimate concern justifying censorship of this core political speech," Mosman ruled.

Barnes earlier this month sued the high school, the principal and school district, arguing they violated his First Amendment rights when he was told to go home or cover up the shirt in class…. The shirt reads: "Donald J. Trump Border Wall Construction Co." with the phrase "The Wall Just Got 10 Feet Taller."

There is no written opinion (there often isn't with temporary restraining orders), and the transcript of the hearing is not yet available, but I expect that, if the case doesn't settle, there will be a written opinion at later stages.

Congratulations to Brad Benbrook, Steve Duvernay, and Benjamin Becker, who represented Barnes; I have consulted closely with Brad and Steve on past First Amendment cases for the Firearms Policy Coalition, though this was not a Firearms Policy Coalition case.

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  1. Too bad the courts don’t require the same evidence with respect to 2nd Amendment violations as they do with 1st.

    1. Or abortion laws. It’s remarkable how much more they respect laws for an unenumerated right discovered in the penumbras of the Constitution than one so clearly enumerated.

      1. The fact that we have different legal standards for different rights is a sign of bias now?

        I demand forum analysis for gun rights! And reasonable suspicion for religious displays!!

        1. re: “The fact that we have different legal standards for different rights is a sign of bias now?”

          In a word, yes.

          1. First, your standard ignores all of American legal history.

            Second, your standard is impossible – as I noted above the tests you use need to be tailored to the situation in which the right comes up. It doesn’t take much to realize that the endorsement test doesn’t apply at all to the right to be secure from searches and seizures!

            Third, your standard doesn’t do what you think it does – First Amendment speech rights aren’t all strict scrutiny – they depend on forum, time place and manner, obscenity, libel, Brandenburg incitement…in short, they are not like the regime you gun folks want for your right of choice.

            1. “First, your standard ignores all of American legal history.”

              No it doesn’t. It doesn’t do that at all.

              “Second, your standard is impossible”

              No it isn’t. It’s actually very easy to do. It was the standard for most of our nation’s history.

              “as I noted above the tests you use need to be tailored to the situation in which the right comes up.”

              Which has nothing to do with the point being made, so super. Notice how to make your point you have to shift from standards (which is itself a shift from respect) to tests.

              “It doesn’t take much to realize that the endorsement test doesn’t apply at all to the right to be secure from searches and seizures!”

              Wow, an exclamation point. How exciting. You should put them before and after your really stupid points, like in Spanish, instead of just after. It’s more convenient for the reader.

              Nothing that Rossami, Scarecrow Repair & Chippering, or ActualRightWingPatriot wrote comes close to suggesting that they believe that courts should have to apply the same legal tests in all cases. Tests are not standards (which again is a shift from respect), and even under the current tiered system cases evaluated under the same standards apply different tests.

        2. A little “Constitutional Law 101” might help you understand what Scarcrow is talking about.

          The text U.S. Constitution includes a bunch of individual rights. The Supreme Court has decided that laws/acts that impact some of those rights will be evaluated under various levels of deference to the government (e.g., the ‘strict scrutiny’ standard vs. ‘rational basis’ standard, whether the plaintiff needs to show actual harm vs de minimum harm, etc).

          The higher levels of deference are so ridiculously easy for the the government to satisfy that, in effect, those rights no longer exist — even though they are still literally in the Constitution’s text. And counter-intutitively, some rights that are not literally in the Constitution are evaluated under the lower level of deference standard.

          It doesn’t make any logical sense, but that’s law for you.

      2. The fact that we have different legal standards for different rights is a sign of bias now?

        I demand forum analysis for gun rights! And reasonable suspicion for religious displays!!

        1. “The fact that we have different legal standards for different rights is a sign of bias now?”

          Yes. The elites hate guns, Heller was a grudging acceptance of the Constitution’s plain language and the courts have approved restriction after restriction since. [7th Circuit is a surprising exception] Heller might as well have been decided in the other way for all the good it does for people living in California or New York or Massachusetts.

          If 1A gets strict scrutiny, no reason at all why 2A should not.

          1. If only there was some distinction between words and bullets, I might understand how courts treat the cases somewhat differently. But alas.

            1. So the pen is mightier than the sword, but not the gun?

              1. Talk is far more dangerous than guns. This is why it should be the first thing government controls on behalf of The People.

            2. Talk to the people who survived the Cultural Revolution in China about the impact of the words in Mao’s Little Red Book. Unfortunately, you can’t adk the tens of millions who didn’t survive.

            3. The purpose of the 2nd Amendment was to protect gun rights DESPITE guns being dangerous. Saying that guns are dangerous as a justification for infringement renders it meaningless.

            4. If you can find the words “strict scrutiny” and “intermediate (or lower)” scrutiny in the BOR, please point them out

              1. They’re in the same penumbras that grant a right to kill babies or have anal sex.

                1. I really want a jurisdiction to criminalize putting guns up your butt just so ARWP’s head explodes.

          2. I suspect that if the 2A got strict scrutiny, but, say, the 15A got rational basis, people would see more of a problem.

            1. Facially neutral laws that disproportionately impact blacks do not violate the 15th Amendment.

            2. But strict/rational is a false dichotomy – it’s not who gets strict who gets rational, there are all sorts of triggers and tests for when this or that scrutiny applies and exceptions and whatnot.

              This is just a fancier version of the partisans’ paranoid ‘despite all the evidence, we’re still in a crisis of oppression!’

              1. But strict/rational is a false dichotomy – it’s not who gets strict who gets rational, there are all sorts of triggers and tests for when this or that scrutiny applies and exceptions and whatnot.

                Yes, and all of those triggers and tests are just hand wavy ways to get to the real reason they decide which applies: whether they like the right or not.

                Speech rights: YES
                Gun rights: NO

                1. I don’t know how to get more in your face than “Congress shall make no law” and “right shall not be infringed”.

    2. That was exactly my first thought too.

  2. Can a school use the “substantially disrupt” argument to engage in viewpoint discrimination?

    For example, if many students would find this T-shirt offensive and would disrupt the school, but an “Impeach Trump” T-shirt would not (either because few in the school would be offended by that, or those who would would be too polite to disrupt), could the school ban the one without banning the other?

    Or would the school be required to ban all T-shirts with messages?

    1. 9th Circuit said that a high school (in Morgan Hill, CA) could ban students from wearing American flag themed clothing on Cinco de Mayo, while allowing Mexican flag themed clothing. That seems like viewpoint discrimination to me.

      USSC refused to hear it.

    2. Any ban would have to be content neutral, so the ban would probably have to be on all T-shirts with a message.

      The local high school went through the whole T-shirt argument a few years ago. Some students started wearing Latino Pride, Black Pride, Indian Pride T-shirts. Than some students showed up wearing White Pride T-shirts. All message T-shirts ended up being banned. People took this issue to nuclear levels of stupid.

      1. “All message T-shirts ended up being banned.”

        That …. that’s actually the best possible result.

        Remember- any message t-shirt has the same message. “I’m with stupid,” with an arrow pointing up.

        1. Maybe the second best…

        2. I don’t know that they all do, but this one sure does.

    3. Well, according to Judge Reinhardt, you don’t even need to wait for substantial disruption to engage in viewpoint discrimination against hurtful viewpoints. The case was Harper vs Poway School District and it was an appalling decision. SCOTUS vacated a moot, meaning it’s not binding precedent, but as vacated for mootness instead summary reversal that it deserved, it’s obviously already been cited favorably by other 9th Circuit panels. The school district should appeal. Get someone like Graber or dozen others on the panel they’ll fix this evil shirt wearing kid for good.

  3. These t-shirt wars are ridiculous.

    Why in the world can’t we just tell everyone that political expression is (or is not) allowed instead of wasting courts’ time deciding whether something is “substantially disruptive” or not. That’s going to vary by school in any case.

    My preference is for a rule that says no messages of any kind on shirts. They can have a small manufacturers’ logo and maybe the school name, and that’s it.

    My second choice is “anything goes,” though I would allow a restriction on profanity.

    1. RIght, then we’ll have companies dba “white pride” and be right back where we started.

      Better to just grow thicker skin.

      1. OK. Then let’s just say anything goes.

        These fine-grained judgments about disruption, content-neutrality, etc., are absurd.

    2. Just to be clear, you are on the record wanting to reverse Tinker if it’s replaced with a neutral prohibition on all expression that is ‘political’ (rather than say, social[1], medical[2] or historical[3]) ?

      [1] End Poverty
      [2] Marijuana is less harmful than alcohol
      [3] A picture of Robert E Lee

      1. I wasn’t totally clear. My actual preference was stated in my third paragraph.

        No messages. No pictures. Nothing. There can be a brand logo and the shirt can carry the name of the school.

        As SC&C points out, though, someone is going to come with a logo to get by that. So I think “anything goes” is a better rule. If you want to ban profanity or obscenity, etc, OK, I guess, though it needs to be defined in advance.

        Current practices are ridiculous.

        1. there are plenty of shirts available with no brand logo on the outside. why bother allowing a brand logo?

        2. “No messages. No pictures. Nothing.”

          I think you have to go all the way to uniforms. Otherwise you have a problem when people pass the word to wear pink shirts to support breast cancer research, yellow ones to support the troops, baseball hat red ones to support Trump, green ones to support MJ legalization, plaid ones to support LGBT (‘I’m a lumberjack, and I’m OK…’), etc, etc, etc.

          1. +like button

          2. Suits me.

            I just think this whole business is silly, and there needs to be a way to deal with it without going to court, and without having another culture war skirmish.

            1. “there needs to be a way”

              How about ‘Alice can wear whatever shirt she likes, and if Bob doesn’t like Alice’s shirt … he can wear whatever shirt he likes, but he doesn’t get to pick Alice’s wardrobe for her’. No court involvement needed; the principal can explain the facts of life to Bob.

              1. What about Ted and Carol?

        3. Just to be clear, a “brand logo” can only be the brand of the clothing, or any brand?

          Because I’m reasonably sure that Marlboro or Budweiser is not going to fly.

          I agree current practices are ridiculous, but they are that way because it’s actually a hard problem.

          1. That’s what I meant.

  4. 9th Circuit said that a high school in Morgan Hill, CA could ban students from wearing American flag themed clothing on Cinco de Mayo (supposedly for their own safety), while allowing Mexican flag themed clothing.

    USSC refused to hear it.

    The incident was 2010, court decisions 2015/2016.

    I don’t see this case as being particularly different, but IANAL.

    1. You mean, unlike these judges, YANAPSM You are not a professional sophistry-meister.

  5. I keep predicting that schools will start requiring uniforms precisely to avoid these problems. Hasn’t happened yet. As Keynes said in a slightly different context: “The market can stay irrational longer than you can stay solvent.”

    1. That is because there actually exists a supply of non-insane school administrators/teachers than just laugh off student complaints about the content of another student’s T-Shirt. We never hear about the case where sanity prevails.

      1. IOW, “Dog Bites Man” does not make the evening news. “Man Bites Dog” does.

        1. Or even “Dog Wags Tail, Barks a Couple Times, then Ignores Man and Chases a Squirrel.”

      2. We need a sanity clause.

        1. Ooooh, you can’t fool me! There ain’t no sanity clause!

    2. “I keep predicting that schools will start requiring uniforms precisely to avoid these problems”

      Dunno. I think you’d be surprised at how common uniforms (or, at least, standardized dress codes) have become.

      In many parts of the country, they are the rule, not the exception. Which is pretty weird if you remember how it used to be (only parochial school for uniforms, only certain private schools for dress codes).

  6. Good result. Fledgling Republicans and bigots-in-training have rights, too.

    1. Who are you, and what have you done with the Rev.?

  7. Do sort’a enjoy the irony of Liberty High School denying a student’s 1st Amendment rights, though.

  8. Does seem like a disproportionate amount of fuss and bother, particularly since I for one can’t tell whether the shirt is meant to be pro or anti.

  9. I’m throwing this out there for consideration–just thinking out loud…

    I think one of the benefits of 1A is people can also ignore another person’s speech–I don’t have to listen/watch your speech.

    I can ignore a politician’s speech, billboards, or a demonstration.

    I can ignore the rebel flag hanging at a house in a nearby neighborhood.

    I can ignore Fox/CNN, whatever.

    However, in this particular instance, it’s hard to ignore the t-shirt in the confined setting of a classroom.

    Not sure if anyone has addressed a right to ignore.

    Again, I’m not supporting this position, just throwing it out there.

    1. And to add…the confined setting is government directed.

      The other students (as well as the t-shirt wearing student) do not have the freedom to leave the classroom (or if they do, they risk a govt sanction).

    2. If the students pay attention to the teacher they won’t notice the t-shirt.

  10. In general, the solution to a disliked slogan on a shirt is a better message on another shirt.

    1. Rev., I don’t think that works when the one kid from Somalia comes into class, to find 15 “African Shithole” T-shirts on his classmates, and a prestigious 1A advocate front and center to defend it as salutary free speech.

      More generally, the old saw, “The solution for bad speech is more speech,” has never been a reflective one. If the speech in question does actual damage at the time, maybe more speech doesn’t deliver a remedy for the damage already done. Damage already done is the dilemma which underlies libel law. More aggressive speech can push more speech instances into the dilemma category.

      Note, for instance, the recent trend of tribalists trying to think up ways to weaponize speech rights, to devil their supposed enemies. That, plus the internet, has kind of cut some ground out from under the old reliable free speech nostrums.

  11. Barne’s lawyer “further argued that the school can’t muffle one side of the immigration debate while allowing one of Barnes’ teachers to display a sign in front of a classroom that reads, “Sanctuary City, Welcome Home.”

    The only disruption in “his first-period “People and Politics” class, where the topic of discussion was immigration, was from the Vice Principal.

  12. Tinker v. Des Moines Independent Community School District, beatches!

  13. WOW!
    A school is going to obey a court order? Damn; never thought I’d live to see it. What next, constitutional rights?

  14. But I’m sure wearing a t-shirt of the murderous Che or hammer & sickle offends no one.

    Stick ‘Trump’ on a t-shirt and suddenly they react as if they just saw him boil an illegal immigrant child on the Food Network.

    People are hilariously depressing.

    1. But I’m sure wearing a t-shirt of the murderous Che or hammer & sickle offends no one.

      Well, it obviously offends you, so that can’t be right.

      OTOH, I suspect you’ve identified one of the few things Trump won’t do if it’s in his interest. He’s not exactly noted for respecting moral boundaries.

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