The Volokh Conspiracy

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Volokh Conspiracy

Supreme Court refuses to review school's ban on wearing of American flag on Cinco de Mayo


This is the case in which Robert Corn-Revere, Ronald London, Lisa Beth Zycherman and I filed an amicus brief, on behalf of Mary Beth Tinker and John Tinker, of Tinker v. Des Moines Indep. School Dist. fame. In the decision below, the Ninth Circuit upheld a California high school's decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. The court essentially concluded that the "heckler's veto" theory could be applied in the special context of K-12 schools: When there is reason to think that student speech would lead to violence against the speakers—and there had been threats of racial violence aimed at students who wore such shirts the year before—the speech can be restricted. You can read the opinion, and the dissent from denial of rehearing en banc, here (with the dissent by Judge O'Scannlain, joined by Judges Tallman and Bea, included first).

The Supreme Court's decision means that the Ninth Circuit decision stands, and remains precedent in the Ninth Circuit. But a denial of certiorari is not a judgment on the merits of the question. It is the Court's "well-settled view that denial of certiorari imparts no implication or inference concerning the Court's view of the merits"; the Court may refuse to hear a case simply because the case doesn't seem important enough to the Justices, because it has procedural features that keep it from being a useful vehicle for considering the matter, or for many other reasons. I hope that the Supreme Court revisits the question in some future case.