Guns

Right to Wear T-Shirts That Depict or Mention Guns

... extends to public high school students, holds a federal judge in Wisconsin.

|The Volokh Conspiracy |

Markesan High School student Matthew Schoenecker wore these two shirts to school:

He also wore one that "contains no images of weapons but displays text reading 'IF GUNS KILL PEOPLE, I GUESS PENCILS misspell words CARS drive drunk & SPOONS make people fat.'"

Schoenecker was told that he could not wear T-shirts that either depict weapons or even mention the word "gun." The school dress code bans

Clothing or articles displaying obscenities, suggestive slogans and/or images, nudity, gangs, crime, violence, occult worship, slanderous or harassing material, encouragement of disruptive behavior, weapons, beer/alcohol, tobacco, marijuana or other drug designs are prohibited.

Likely unconstitutional, said U.S. District Judge Lynn Adelman, in Schoenecker v. Koopman, decided Friday, granting a preliminary injunction blocking the school from enforcing the rule against Schoenecker. The T-shirts contain presumptively protected speech, the judge held, notwithstanding the school's argument that the first two shirts "do not convey specific, unambiguous messages." Because the images on the shirts "are pure speech, in that they contain images and words that convey a message," they are presumptively covered by the First Amendment even if they are "ambiguous and open to interpretation," and lack "a narrow, succinctly articulable message."

And this presumption wasn't rebutted by a sufficient showing of "likely … substantial disruption" (the Tinker v. Des Moines Indep. School Dist. Standard):

To show that he reasonably believed that the T-shirts would be likely to cause substantial disruption, the defendant [principal] cites the following facts. First, he states that staff members working at the school told him that the shirts "made them uncomfortable and concerned about school safety," especially because the plaintiff wore the shirts shortly after the shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Second, he notes that some students at Markesan High School participated in a walkout to protest school gun violence and to remember the 17 victims killed in the Parkland shooting, and that some Markesan students in general are concerned about a shooting occurring at their school. Third, the defendant states that "class instruction was disrupted on multiple occasions due to student discussions and arguments about the [plaintiff's] shirts." Finally, the defendant states that, after the plaintiff filed this lawsuit and news outlets came to the school to interview him, students became distracted by the news crews and had disruptive discussions during class about the media presence.

This last reason clearly does not support the defendant's position that the school may censor the plaintiff's speech. Any disruption related to the media presence on campus was not caused by the plaintiff's shirts, but by the defendant's decision to censor the shirts and the ensuing lawsuit. The media would not have taken an interest in the plaintiff's conduct had the defendant simply allowed the plaintiff to continue wearing the shirts.

So even if the media presence qualifies as a substantial disruption, the disruption cannot be attributed to the shirts themselves. Moreover, there is no reason to think that the media will continue visiting the school if the plaintiff is allowed to start wearing the shirts again.

The defendant's remaining three reasons support his decision to ban the shirts, but only slightly. As far as the record reveals, no students felt threatened by the plaintiff's shirts. Yes, some students were concerned about school shootings in general, but no evidence suggests that the plaintiff's shirts contributed to any student's anxiety. The evidence is that the actual school shooting in Parkland, Florida was what prompted the students' concerns.

The defendant tells us that the plaintiff's shirts made some staff members uncomfortable and concerned about school safety, but there is no evidence that any staff member's ability to provide instruction to students was affected. Moreover, the staff members' reaction to the shirts seems unreasonable, as none of the shirts promote gun violence.

The defendant also states that class instruction was "disrupted" on multiple occasions "due to student discussions and arguments about the shirts." But he does not elaborate on this statement by explaining exactly what happened, so it is hard to infer that the disruption was substantial or that it would be reasonable for the defendant to forecast that additional such disruptions will occur if the plaintiff is allowed to continue wearing the shirts.

Quite right, I think, and consistent with Newsom ex rel. Newsom v. Albemarle County School Board (4th Cir. 2003), a federal appellate case that reached the same result on similar facts.

Judge Adelman, by the way, argued on behalf of the defendant in Wisconsin v. Mitchell (1993)—the case in which the Supreme Court upheld the constitutionality of hate crimes enhancements (though of course not of "hate speech" rules)—and later cowrote a law review article criticizing that decision. He was also a Democratic State Senator in Wisconsin for 20 years, before being appointed to the bench by President Clinton.

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  1. Since schools are constitution free zones, I can’t see how this suit will succeed.

    1. Can you elaborate, please? This suit has, so far, succeeded — the plaintiff has gotten the preliminary injunctions. Some others have as well, such as the Newsom case I cited. Maybe schools aren’t such constitution free zones, after all. But you seem quite certain of your position, so I take it you have some more detailed thoughts on this.

      1. Oh oh — you called his bluff. This will be interesting 🙂

        1. Given articles like this one and many others where constitutional rights are suspended on campus in the name of one thing or another, that’s what he’s getting at. Cynicism at the courts given the quantity of restrictions on students. It’s starting to push back the other way, we’ll see how far.

          1. Well, I can see why one might think that courts are underprotecting students’ rights. But as to “this suit,” the judge does seem to be protecting those rights, and so did the Fourth Circuit in Newsom, no?

      2. Scalia himself wrote in Heller that the 2nd Amendment doesn’t apply in “sensitive places” such as schools.

        1. Pretty sure that wearing a t-shirt depicting a firearm is not actually a Second Amendment issue.

          1. I agree; I was responding to the point that schools are often Constitution free zones. In terms of the 2nd Amendment, for adults, they are.

        2. “Scalia himself wrote in Heller that the 2nd Amendment doesn’t apply in “sensitive places” such as schools.”

          My pet peeve on Heller.

          Scalia said nothing of the sort.

          “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[26]”

          Observe the most IGNORED footnote in the history of the Supreme Court:

          “[26] We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

          Please note the term, “presumptively lawful.” When Heller was first handed down, I read an excellent analysis which pointed out that these “longstanding prohibitions” were simply not in scope for Heller. Scalia is making this observation to limit the scope of Heller to the issue at hand: whether or not DC could ban the ownership of handguns in the home. That’s it. The gun-haters took that very small footnote, and have cast it in gold and worshiped it ever since. Countless lower court opinions have quoted this paragraph and/or footnote, either unintentionally or intentionally ignoring the context, which was to merely focus the scope of this opinion to the issue at hand.

          1. I think you’re being too generous. Scalia did this on purpose to get Anthony “Gay anal sex is human dignity” Kennedy onboard. He knew that no one would read that except exactly as it was.

            1. Australia forbids dwarf tossing at bars because some judge decided that it violated dwarven human dignity, even though the dwarves liked being paid to do it.

              These are just words and can be slapped onto either side of an issue. Does it advance freedom, or does it oppose it?

            2. I keep having to remind you not to sell Lawrence short. It protect male to male, male to female, female to female and female to male anal sex.

              You don’t have to mention it, but at least let’s get all the dignity in the decision.

            3. I keep having to remind you not to sell Lawrence short. It protect male to male, male to female, female to female and female to male anal sex.

              You don’t have to mention it, but at least let’s get all the dignity in the decision.

        3. A t shirt is not a 2nd amendment issue but a 1st amendment issue.

        4. Except that there are now quite a few states and districts that make provision for citizens to be armed AND on school campus. In some states, those with Mother May I Cards are allowed to carry on campuses, some of them even INSIDE the buildings. Soit seems the definition, and resultant prohibitions, are not cut and dried, nor universal.
          The COnstitution declares that the right to arms SHALL NOT BE INFRINGED…. does not limit in any way the “by whom”, “when”, or “where” questions, does it?

        5. Even Scalia, as smart as he was, could be wrong.

      3. Gun Free Zones, Warrantless Locker Searches.

  2. The shirts caused class disruption so must be banned but “some students at Markesan High School participated in a walkout” apparently was ok and caused no disruption.

    1. Of course! Either there were no students left to complain about disruption, or all the walkouts were the usual combination of class clowns and lazy students who disrupt normal classes, so all the remaining students appreciated the day of actual time to learn.

    2. That could be his strongest argument — they allowed the opposite viewpoint to exist…and disrupt…and some teachers no doubt even encouraged it.

    3. Nor did the walkout express a side taken on the issue, did it? But thse shirts did?

      I’ll bet at last some of the poor folks who were in that synagogue in Pittsburgh would have given everything they own for a little bit of the “LOVE” displayed on the one shirt. Maybe not the “O” character, but certainl the others. So the “viewpoint” or suggested use of the “tools” portrayed on both shirts was not specified in any action of Plaintiff. HOW does anyone know what HE would do had he possession of any of this items represented on his shirt?
      Now, if he was expressing a desire to bring this or that item, as portrayed on the shirt to campus and USING it to “take out” anyone there, we’d have a horse of a whole nuther colour, wouldn’t we?

      Since WHEN is the mere mention or representation of a gun, in nd of itself, a statement of intent as to HOW to use it? If my holstered and concealed sidearm happens to get briefly and casually exposed as I go about my day, that is no crime, no statement of intent, nor a threat to anyone. HOWEVER if I were to lift up my shirttail, carefully look in the direction of it, then glare menacingly at someone casually walkingby, that same sidearm has now been brandished, I have committed a crime by expressing intent if unlawful use of that weapon. Two different horses.

  3. Where does it allow the state or federal government to ban any product or service?

    It doesn’t. Even the Prohibitionists knew that they needed a Constitutional Amendment to ban alcohol.

    1. With that being said, setting Age of Consent is a parental right. Kids simply do not have all the rights adults have.

      If a vote for dress code by parents were voted on, I see no issue with limiting kids under 18 to a dress code, etc. If 18 is the AoC.

      1. 1. The most common “age of consent,” which is to say the age of consent for sex, is set by state law. (Parents can of course threaten children with, say, being grounded, loss of allowance, etc., but that’s a different matter.)

        2. Parents can likewise use similar tactics to restrict what their children wear at home or in public, or allow them to wear whatever they please at home or in public (subject only to the mild constraints imposed by public nudity laws). But that doesn’t tell us what restrictions government-run schools can impose on behavior in those schools.

    2. I’m glad you love the Constitution enacted in 1789, but, as I’m sure you know, the Constitution creates a federal government that was supposed to be one of limited, enumerated powers, but it doesn’t create state governments — they have plenary powers to regulate as they see fit, subject only to the specific limitations that the federal and state constitutions impose on them (such as the Ex Post Facto Clause, the Fourteenth Amendment, state constitutional Bills of Rights, and the like). So there doesn’t have to be any specific provision allowing a state government to ban a product or service — that is part of the state’s legislative power secured by the state’s constitution (and not affected by the federal Constitution unless the ban violates a specific individual right provision of that Constitution).

      1. States gave up many rights and powers to the federal government to form the United States of America.

        States do NOT have unlimited powers to do whatever they want. For example, a state would not legally be allowed to change its state Constitution to ban guns. Even if you dont think the 2nd Amendment applies as a minimum standard for all states relating to an absolute right to keep and bear Arms, the 14th Amendment forever answered that dispute. The 2nd Amendment is a right for all US citizens of every state and the states cannot “…No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

        My comment still stands, the Prohibitionists knew that they needed a Constitutional Amendment to ban alcohol. Many states already banned alcohol or had such restrictive alcohol laws that effectively banned alcohol.

        1. Indeed, as I mentioned, states do not have unlimited powers to do whatever they want — they are “subject t only to the specific limitations that the federal and state constitutions impose on them (such as the Ex Post Facto Clause, the Fourteenth Amendment, state constitutional Bills of Rights, and the like).” That includes the Second Amendment, as incorporated against states by the Fourteenth Amendment.

          But absent such specific limits on state power, states can indeed ban products and services. The answer to your question, “Where does it allow the state or federal government to ban any product or service?,” is that the federal constitution doesn’t have to specifically allow the states to impose such bans — it just has to decline to forbid such bans (as it does for most products). Indeed, as you point out, states had already banned alcohol even without the Eighteenth Amendment, because that Amendment was seen as necessary only for a federal ban.

          1. You wrongly assume that states have absolute power without limitations placed on them. They dont. Its a fundamental misunderstanding by some people.

            State have to amend their constitutions to allow for general sets of government behavior. Many states allow regulating business and products and services.

            Regulation is NOT banning otherwise there is nothing to regulate.

            Just because a state bans something does not make that action legal or Constitutional. Gun bans in cities, counties and states were/are unconstitutional but on the books. People just never really challenged what the corrupt lawyers were doing in the state capitals.

            ObamaCare is unconstitutional and the SCOTUS okayed it. There is nothing in the US Constitution that allows citizens to be forced to buy a product or service.

            1. I have never obeyed Obamacare rules. They are unconstitutional.

              Just like I dont pay into Social Security.

              Just because a bunch of corrupt lawyers says something is a certain way does not make it so.

              Same thing for a state. A state simply need only amend its constitution to ban drugs. They dont.

            2. States must have a Constitution that authorizes general actions or the state cannot do them.

              Georgia, my home state and one of the original states, lists government authorized actions, limitations on the state government, and rights of the people recognized and given.

            3. I think you’re very confused. But answer this: Do you think it was (or is) unconstitutional for any state to ban the sale of alcohol?

              1. Great counter-argument.

                Where in any state Constitution does it allow that state to ban products or services?

                Hint: If a state Constitution lists some banned item, it literally proves my point that states cannot ban products and services without an amended constitution. Some things are protected from banning even at the top level like Arms.

                States need authority to ban products and services and that comes about by amending their constitution.

                1. re: “States need authority to ban products and services”

                  No, they don’t. They should but that’s not how most of the state governments were formed. The federal government is a creature entirely of the US Constitution, a document written around the principle of enumerated powers. What the federal government can do (in theory) is limited to what is said in the Constitution.

                  States, on the other hand, are creatures of their own respective charters or state constitutions. Some of those are written on the basis of enumerated powers but most are not. As Prof Volokh tried to explain above, states have plenary powers. Subject only to the limits of applicable clauses of the US Constitution, states can ban anything they want.

                  1. The 14th Amendment creates a minimum standard for all US states to protect the rights, privileges, and immunities of all US Citizens.

                    You are mistaken about the power states have. States DID have plenary powers. They gave some powers up to form/join the USA. States are also limited to enumerated powers of their own state constitutions.

                    Volokh is wrong on this, but hey, lawyers run the nation, ammirite? Isn’t this the lawyer that thinks the federal government cannot regulate nor control immigration? (see Article I, section 9, clause 1)

                    1. Where, precisely, do you find your authority for the claim that states gave up ALL their plenary powers in order to form/join the USA?

                      Yes, they did concede some powers – but only those that were expressly granted to the new federal government in the federal constitution (or later granted through, for example, the 14th Amendment). With those limited exceptions, states still retain plenary powers.

                      Re: states being limited to the enumerated powers of their own state constitutions – you’re just wrong. Not all state constitutions are written on the basis of enumerated powers. I think they all should be, but they weren’t.

                  2. Not quite…. the Interstate Commerce Clause provides that goods can move freely between the states without any taxes or imposts placed upon them, and I’m quite certain other impediments are also banned. How then can California prevent eggs produced in North Carolina in facilites California does not think are “humane” from entering California? Or how about cars made in Alabama being prohibited articles in California without certain “smog” requriements being met? Or how about Charlie, who bought a new Whatziss car in 2008 when he lived in Georgia and now wants to move to California and bring it with him…… but CARB nazis tell him he cannot register it in their fine state?
                    Or, more to the point of THIS article, HOW can California constutitinally prevent handguns not “approved” by the stupid Dept of Just-us (which are two years behind in examing/testing new models, or even older ones now in a different colour and no other difference) being sold at retail in their state? INterstate Commerce was written pecifically to provide for a defense against such tyrranny.

                2. 28 states went dry pre-prohibition.

                  1. Doesnt make it any less unconstitutional.

                    Government gets away with all sorts of unconstitutional things. Many times because people dont fight them.

                    A prime example is FDR’s internment of Japanese-Americans during WWII. Nowhere in the US Constitution does it give the President the authority to lock up Americans without a trial or bail or a speedy trial. Nowhere.

                    Even when the Constitution allows for suspension of habeas corpus (Article I, section 9):The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. A state of war is not an excuse to suspend habeas corpus and the right to trial and bail cannot be suspended.

                  2. Where in those 28 state constitutions, did they get the authority to ban alcohol and deny US and state Citizens the right to consume whatever they wanted? Nowhere is the answer.

                    All they had to do was change their constitutions but even that is too much for these authoritarian traitors to their constitutions.

                    1. All of those state constitutions entitle their state legislators to legislate. States have plenary powers subject to express limits. (That’s not how the federal constitution works, so I’m not sure why you keep comparing violations of express constitutional provisions to state laws that are consistent with those states’ constitutions.)

            4. Gun bans are unconstitutional when cities and states attempt to prevent people from possessing them. Cities and states have always been able to regulate when and how they are carried. In McDonald, the issue was Chicago attempted to make it illegal to have a gun in your home. They said all guns must be registered but refused to register handguns after 1982 making them illegal in the city. SCOTUS said a city can restrict carrying them but not owning them.

              1. No, SCOTUS did NOT say that a city could restrict carrying guns.

  4. You’d think that they would cover this in Ed School; “Your personal prejudices plus your authority as a Teacher/Administrator do not trump actual law.”

    1. Is that how you read the strictly right-wing result in the ‘Bong Hits 4 Jesus’ case?

      1. There are plenty of liberal/progressive hard core drug warriors, so don’t go making that all a right-wing result.

      2. Ah, you are a member of the American Nonsequiter Society! I haven’t been to meetings in some years (family medical issues). Do say “Hi” to everyone for me.

  5. I have difficulty squaring this with “Bong hits for Jesus.” If that phrase sufficiently encourages illegal behavior so as to be constitutionally proscribable, I am not sure how shirts celebrating gun culture fail to do so.

    That said, Morse was a ridiculous decision and ought to be overruled, so I wouldn’t want to extend that line of reasoning to cases like this. I just don’t think our jurisprudence should include special solicitude for gun culture.

    1. I agree Morse was ridiculous, but I don’t see how you can describe “gun culture” as “illegal behavior.”

      1. Well, take it slow.

        Does “Bong hits for Jesus” advocate illegal behavior of any kind? The correct answer is, “no.” We might be most inclined to describe the phrase as just silly nonsense.

        Does a shirt spelling “LOVE” with firearms or featuring several firearms with the caption, “Celebrate diversity,” advocate illegal behavior of any kind? The correct answer is, “no.” We might be most inclined to describe the shirts as expressing a kind of empty fandom or silly nonsense.

        The gun t-shirts become “political” only insofar as we interpret them within the larger context of a political debate happening right now in this country, particularly in the context of schools. We might tend to “read into” them a political statement. But that is not evident on the face of what the t-shirts say.

        Similarly, “Bong hits for Jesus” doesn’t seem to have any specific political context unless we view it within the context of a broader political debate over marijuana legalization.

        In other words, I agree that celebrating gun culture is not the same as advocating illegal behavior. That was my point.

    2. I think the Morse majority was mistaken in concluding that Frederick’s message was nonpolitical (or perhaps even nonsensical). But, as I discuss in more detail here, that was the premise of the majority’s reasoning, and two of the five Justices in the majority (Justices Alito and Kennedy) expressly stressed it:

      I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as … the wisdom of the war on drugs or of legalizing marijuana for medicinal use.

      The speech here does not advocate illegal conduct, and it can plausibly be interpreted as commenting on a political or social issue, namely the wisdom (or not) of gun control and of gun rights.

      1. Morse is simple. The majority didn’t like marijuana, so they made up some BS to rule the way they wanted to.

        I don’t see any particularly political message either there or here. In this case the kid just likes guns, so let him wear a t-shirt that says so.

        1. “they made up some BS to rule the way they wanted to”

          Like most other cases.

        2. The Court’s conservatives didn’t like uppity liberal kids, either. It was probably no fun trying to defend stale thinking and to fit membership in the Young Republicans Club with social success in high school, and the sting lingers.

        3. Or the court decided to give the district a pass when the message was to encourage the violation of the law.

          1. Or the court decided to give the district a pass when the message was to encourage the violation of the law.

            Or it could pretend that it did that.

      2. Sorry, this doesn’t work. “Bong hits for Jesus” is just as plausibly political, and implausible as an advocation of illegal conduct, as the pro-gun culture t-shirt cited in this case. That the Supreme Court held otherwise, contrary to fact, doesn’t mean that the analogy doesn’t apply here.

        1. Well, if you want to read Morse v. Frederick as essentially authorizing government restrictions on speech on political or social matters — despite two of the five majority Justices’ expressly rejecting that view — you can. And if you want to conclude that advocacy of perfectly legal conduct (gun possession) is “plausibly … advocation of illegal conduct,” you can, too. But I don’t think courts will or should agree with you on this.

          1. Put the strawman away, Eugene.

            I am not saying that Morse authorizes regulation of speech on political or social matters or of speech advocating legal conduct. The point I am making is not doctrinal, but rather relates to inferential standard the Court followed in Morse in order to defend the distinction you are now repeating.

            The inferential standard that Morse followed as applied to the phrase “Bong hits for Jesus” resulted in a tenuous conclusion. Applying a similarly loose inferential standard here, “LOVE” spelled using guns could just as easily be understood to endorse legal gun ownership as it could using guns in an illegal fashion. Ditto the “celebrate diversity” or “If guns killed people…” shirts. And, indeed, I am not even sure how you’d defend your interpretation (i.e., that the shirts advocate gun possession), except with a heaping scoop of question-begging.

          2. Let’s make it easier for you. Supposed the kid wore a shirt saying, “Gun shots for Jesus.” Same result?

            1. That’s both political and religious, Simon. Definitely protected. In fact, I saw a youth pastor at a gun range years ago with a very similar shirt.

              However, if it depicted a cartoon of dead people as well, or otherwise implied that guns should be used illegally, that could be banned under the Morse judgment.

              On the converse side, a giant Marijuana leaf with the phrase “Make it legal” is clearly a political message, not promotion of crime.

              Schools can ban promotion of illegal acts. They cannot support political sides, and legal gun ownership is a political opinion. This isn’t complicated.

              1. Since when can’t they take political sides. Kids in my district participated in a walk out organized by left wing groups last spring. The schools made it clear that no detentions or suspensions would be handed out even though school policy would clearly require punishment for kids that just got up and left class.

        2. The Supreme Court held, consistent with Frederick’s own position, that it was not a political message.

          1. Procedural posture is not a substitute for logic or semantics. All you’ve explained here is why Frederick loses. It doesn’t address the question I’ve raised.

        3. Both “Bong” and “Jesus” are proper names.

          It’s a baseball reference, of course, a scorecard notation about a pinch-hitter!

          Quite a few places have been named for Medal of Honor recipient Dick Bong.

  6. Maybe this blog has already covered this, but it strikes me as very problematic that any public schools excused students from class for the recent anti-gun walkouts. I don’t know what the controlling precedent is, but it seems to me they should be made to demonstrate that they have a policy of excusing students to attend a pro-2A, pro-life, pro-KKK, or whatever demonstration they may encounter–or even invent for themselves. (Because of the attractiveness of the latter option for children–“We are walking out of calculus to protest…dolphin-unsafe corn chips! Yeah that’s it!”–I am skeptical that they do.) They should be forced to describe a specific policy, or else it does not sound very “time place and matter” to me.

    1. *manner, of course!

  7. I don’t think that discussions in class about the t-shirt, or guns in general, disrupts the education process. I think it enhances it.

    1. Unless you’re in one of the vast majority of classes that do not have anything remotely connected to the U.S. Constitution on the syllabus. Then STFU and teach what you’re paid to teach.

      1. Never a bad time to teach current events and civics.

        1. Math class is a bad time.

          1. I refer you to the best line of the Suicide Squad movie, where Deadshot teaches trigonometry via bullet trajectories.

      2. If my daughter brought home a science, math, or English syllabus that had a section on the constitution, that would be far greater cause for concern.

        In other words, I would hope the vast majority of classes do not teach anything remotely connected to the U.S. Constitution because those classes aren’t remotely connected to the U.S. Constitution.

  8. The same right-wingers who embrace censorship when they are the censors (Bong Hits 4 Jesus, the Volokh Conspiracy, etc.) seem to become ardent advocates of free expression when defending fledgling gun fans against different censors.

    I figure guns, bongs, Jesus, and Harry Potter (for or against) are fit for student apparel, banners, or stickers. I guess that comes with the libertarian territory.

    1. I know it must come as a surprise to you, but there are things more important in life than weed, gay buttsex, vegan organic snacks, and marathon running sneakers.

    2. I’ll take you seriously as a libertarian, Rev., when you add protests against legalized abortion, opposition to gay marriage, opposition to immigration (legal or illegal), anti-Muslim memes, and other positions unpopular with the left to your list, AND you admit that all opinions, even truly despicable opinions (like “Hitler should have finished the job” or “We need more lynchings”) also go on that list unless they fall within the very narrowly drawn exceptions to First Amendment protection. Free speech only for popular opinions isn’t free speech at all. And yes, Morse was a TERRIBLE decision.

    3. Morse was close because the clear import of the t shirts message was to encourage participation in what was then (and in most places still is) a criminal act.
      Roberts is my favorite justice of the current 9, all things considered, but he do like him some gummint, and will rule in it’s favor if he can.

      1. Let a kid show up wearing a “Let’s rape Malia Obama” shirt, and see how much traction that kid gets.

      2. It wasn’t “close.” It was a horrible decision.

        It didn’t advocate a criminal act, either. There’s no law against Jesus taking bong hits. He’s not subject to the jurisdiction of any of the United States.

        1. BONG HITS 4 JESUS, means let’s get high to express our love for that party animal, Jesus.
          Like MARCH FOR PEACE.
          I’ve never interpreted, or imagined anyone with half a brain could have interpreted, the message, in any other way.
          It’s not encouraging a dead man/God to blaze up.

          1. Your lack of imagination isn’t argument or evidence.

            The literal translation of that phrase would be to give Jesus bong hits.

            1. Smooth’s reading is cromulent.

              Does that decision allow suppression of expressions of belief if Rastafarianism?
              As tempting as it might be to lay that smack down on white, wannabe suburban
              stoners, the free exercise clause might prevent it.

              Nobody wants Ras Trent .

        2. I take by your non-response, that you agree that “Let’s Rape Malia Obama” would be unprotected.
          So, that kind of makes my point.

          1. Unlike “Bong Hits 4 Jesus” your “Let’s Rape Malia Obama” encourages a violent act, in addition to being criminal. It’s kind of phrase that sent Tom Metzger into bankruptcy.

            1. Mere advocacy can’t be criminal. But under Morse a school could ban it.

  9. Lots of people here seem eager to imagine this case went the other way, so they could claim persecution.

    1. They also act as if Bong Hits 4 Jesus wasn’t censored . . . or that it wasn’t censored by Republican justices.

      In 20 or 30 years, marijuana will be legal, most people will laugh at the Bong Hits 4 Jesus majority, guns will be legal but governed by better safety regulations, and students will be entitled to wear gun-themed, doobie-themed, and Jesus-themed (for or against) shirts. That’s American progress, and conservatives are unable to prevent it.

      1. One could argue “bong hits for Jesus” was advocating for a religious experience, in which case, lovers of the concept that laws of general applicability should override religious sensibilities should rejoice at the decision.

    2. Strictly speaking, there was persecution. The student was told that he could not wear T-shirts that either depict weapons or even mention the word “gun.” The courts subsequently concluding (probably some years hence – this appears to be a district court decision) is better than nothing, but the damage has already occurred.

      Speaking of damages, what are the odds the (presumably former) student here gets some?

      1. You are correct. Apparently that’s just not good enough for some.

    3. “Lots of people here seem eager to imagine this case went the other way, so they could claim persecution.”

      Really? Who are they? Come on, name names. Don’t play the chickenshit “lots of people” game.

      1. Longtobefree
        Bob from Ohio
        BillyG
        loveconstitution1789

        1. Your lack of reading comprehension should embarrass you. I know it won’t, but I just wish I could figure out if it’s because you are too dumb or just shameless.

          1. We never have productive conversations, because you spend 80% of your posts insulting me and the other 20% on collateral pedantry.

            I see you didn’t even other on that last 20% this time.

            Post more content.

            1. We never have productive conversations because you are either a moron or completely dishonest. You aren’t worth taking the time to have a productive conversation.

              Post less “content.” Make the world a better place.

              1. Funny, I have no trouble getting into substantive conversations with most of the others on this board.

                Sounds like you have a personal problem.

  10. Honestly, I’m more curious as to how the ban on clothing/articles that display “occult worship” isn’t blatantly unconstitutional. That seems, at a minimum, too broad (does “occult worship” include the t-shirts associated with bands that include occult symbols?). Even more so, it doesn’t ban shirts/articles associated with other religious worship.

    1. The 1st Amendment was only intended to protect the various denominations of Christianity. It should not protect any other religion.

      1. There were Jews in the USA in 1789.
        Your better argument is that the 1st amendment was never meant to apply as written to the states.

        1. Don’t feed the trolls. 😛

          1. It’s sort of a Catch-22.
            If I comment, I am feeding a troll;
            If I ignore it, Sarcastro, the VC’s very own Aunt Pitty Pat, takes us to task for not confronting the racist silliness.

            1. I’ve never said that about this guy. He’s not a conservative. Ignore the crap out of him.

              1. I don’t believe I’ve taken any commenter to task for ignoring other commenters on this blog, in fact.

                Your party, yes. Internet commenters on this forum, not that I can recall.

              2. > He’s not a conservative.

                Is this a no true Scotsman? Because even if this guy is a troll, there absolutely are conservatives that hold his positions.

                1. He’s conservative like ISIS is Muslim.

                  I consider it a minimal courtesy not to associate him with the other commenters I lock horns with on here.

                  1. I operate on the assumption that AWRP is really a progressive person caricaturing a rabid conservative and Kirkland is the opposite.

                    1. Yeah, pretty sure both are sock puppets for Reason sales folks drumming up page hits

        2. Doesn’t everybody know that? All controversies surround the 14A.

  11. “We will purposely fabricate disablement of our ability to educate, or be educated, when confronted with perspectives we do not like, thus justifying rules prohibiting the expression of these perspectives as disruptive.”

    Just one line from The Snowflake Creed

  12. Corporal punishment is legal in public schools in 19 states. So it’s constitutional for a principal to hit a kid but unconstitutional for that same principal to tell a kid “you can’t wear that shirt in school.” That doesn’t make much sense.

    1. It makes perfect sense. The principal can hit a kid for an actual infraction, not for exercising his first amendment right to wear a perfectly acceptable T-shirt, armband, etc.

  13. The “occult worship” clause is so obviously unconstitutional that I’m sort of surprised the judge didn’t remark on it in passing. A shirt saying “Lukumi Babalu Aye” must obviously be treated the same as one saying “WWJD”.

    1. I’ve been thinking about how I would set this up for a challenge, and decided that there’s a fine line with a lot of this stuff. For example, could a reference to “Lukumi Babalu Aye” be considered a reference to animal sacrifice, therefore depicting violence in some way that overrides the religious/First Amendment aspects? (To clarify, I completely agree with you; I’ve just been trying to figure out the “cleanest” way to challenge it.)

      It would be interesting to see what would happen with something that wasn’t specifically “occult worship” but blatantly anti-religion.

      1. Like a John Lennon shirt?

  14. While I’m quite in agreement with this ruling, how does it square with Morse v. Frederick? SCOTUS there seemed to give schools a much broader right to restrict speech than Tinker v. DesMoines.

    1. As several people above have pointed out, bong hits are illegal, guns are not.

      1. One of the t-shirts in Prof. Volokh’s post depicts a hand grenade. Is it legal to own a hand grenade? I’m not making a rhetorical point, I honestly don’t know.

  15. Third, the defendant states that “class instruction was disrupted on multiple occasions due to student discussions and arguments about the [plaintiff’s] shirts.”

    A fact (the disruption) apparently ignored in the decision. The reasoning seems to be that the disruption ought not to count, because in the judge’s estimation people’s fears were unreasonable?so I suppose unreasonable disruptions are now read out of the law for irrelevance. Only reasonable disruptions count?

    Are there any facts which could not be barred using such unbounded presumption?

    It would be no less presumptuous for a judge looking at the shirts in question to conclude that the only purpose anyone could have for wearing such shirts to school would be to create disruption.

    Why not put the presumptions aside, and let the apparently uncontested fact of disruption decide the case?

    1. The Supreme Court’s decision in Tinker acknowledged that students’ symbolic speech could be suppressed where its exercise “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966). But Burnside must be read, along with its companion case, Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966), to understand the kind of disruption the Court had in mind. To quote the 5th Circuit in Blackwell, the students’ actions “created a state of confusion, disrupted class instruction, and resulted in a general breakdown of orderly discipline,” and the record provided “evidence of numerous instances, which have been set out in the statement of facts, where students conducted themselves in a disorderly manner, disrupted classroom procedure, interfered with the proper decorum and discipline of the school and disturbed other students who did not wish to participate in the wearing of the buttons.” If the shirt wearers were behaving in such a manner, then fine, ban the shirts. But not just because others were upset and started arguments about the shirts. Burnside, Blackwell, and Tinker didn’t endorse the heckler’s veto.

      1. No, i the shirt wearers were disrupting as in Morse, then ban the disruptors. Wearing a certain shirt is NOT actiaoinable. Misbehaving whilst so doing IS actionable. The focus is on the wrong point.
        Precisely what the argumant over guns comprises: it ain’t the hardware, its what the software DOES with the hardware. The gun/shirt can sit on the table or rest on the floor forever, and no one will be harmed. It is ONLY when the one in control over he gun/shirt DOES something harmful with the item in question there is a problem. Means, opportunity, intent. Lose any one, no crime.

        1. Tionico, as I understood it (maybe mistakenly) the Tinker test was not whether there was crime, but whether there was school disruption. There was.

          And not to put too fine a point on it, the guy wearing the shirt more likely than not intended that disruption?although I suggest what he intended should have been irrelevant. The disruption itself is what is not permitted, and it is what administrators are rightly empowered to prevent. Once the gun shirt changes the subject in math class from algebra to guns, there isn’t any way for an administrator to choose between contesting expressive sides. He can’t say, “No anti-gun speech for you, but go right ahead Mr. Gunshirt.” He can only say, “This is algebra class, none of you can change the subject from algebra to guns, neither pro nor con.”

          In calling this case correctly decided, I suggest EV is grinning inwardly, at seeing a decision, which if it stands, he knows will not only narrow Tinker, but will also tend to create a special speech privilege for gun advocacy in schools.

  16. I think the judge’s opinion unfortunately leaves a lot of room for the school to win on the permanent injunction just by putting in more facts. But those more facts shouldn’t matter. If education is being “disrupted” by the students discussing the shirt – and thereby gun rights, free speech rights, modern controversies, current events, etc. – great! That’s probably better education than anything else going on. And if some number of people feeling more specifically fearful is enough to ban expression, that’s a problem.

    What should settle the case easily is the fact that the school allowed and promoted anti-gun speech (never mind if it made people feel uncomfortable or threatened), while trying to ban pro-gun speech.

  17. It’s good when one of these little public school commissars gets a good judicial slap down. Too bad it doesn’t happen more often.

  18. I hate to say this, but I think the seminal case here isn’t not Tinker, but Morse v. Frederick, the Bong Hits 4 Jesus case.

    And it seems to me that the latter case gives schools a lot more flexibility than Tinker did, because it suggests schools can punish advocacy of illegal conduct. Perhaps Morse is limited to illegal drug use. But I wouldn’t be so sure.

    1. The key word there is “illegal”. There is no conceivable way of construing the shirts as advocating illegal conduct.

  19. Political speech is sacrosanct.

    They accept T-Shirts with political slogans. They must allow his shirt. The only way to ban it is a dress code against all T-Shirts.

  20. I guess a Kiss: Love Gun shirt would be out of the question then…

    1. So would a Hot in the Shade shirt, since that depicts a sphinx, which was a religious/occult figure to ancient Egyptians. That and it was a shitty album.

  21. The occult worship also needs to go right out the window.

    1. I mean, as a banned item. Sheesh.

  22. These shirts should surely be allowed.

    Put the shoe on the other foot and be asking yourself: Would the school be banning somebody from wearing an ANTI GUN shirt that used the word gun?

    I think we all know the answer is no. So these leftists need to be fought all the way up to SCOTUS if they have to.

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