Ninth Circuit Denies Rehearing in Case Upholding Ban on American Flag Shirts in a California High School

Live Oak StudentsOn September 17, 2014, the Ninth Circuit denied a petition for rehearing by the full court (en banc) of a decision upholding a school district’s ban on the wearing of American flag shirts on a California high school campus in 2010 during Cinco de Mayo (May 5th)—a Mexican holiday.  The school district claimed that it was concerned that the speech—the wearing of the flag shirts—would cause the Mexican students to engage in disruptive behavior in response to the speech.

Circuit Judge O’Scannlain wrote a scathing dissent from the denial of the rehearing en banc, which was joined by two other Ninth Circuit judges, Judges Tallman and Bea.  The dissenting judges would have held that the reaction of other students to the student speaker is not a legitimate basis for suppressing student speech absent a showing that the speech in question was outside the First Amendment’s protection.

In his dissent, Judge O’Scannlain stated, in relevant part:

The freedom of speech guaranteed by our Constitution is in greatest peril when the government may suppress speech simply because it is unpopular.  For that reason, it is a foundational tenet of First Amendment law that the government cannot silence a speaker because of how an audience might react to the speech.  It is this bedrock principle—known as the heckler’s veto doctrine—that the panel overlooks, condoning the suppression of free speech by some students because other students might have reacted violently.

In doing so, the panel creates a split with the Seventh and Eleventh Circuits and permits the will of the mob to rule our schools.  For these reasons, I must respectfully dissent from our refusal to hear this case en banc.

AFLC Co-Founder and Senior Counsel Robert Muise, who argued the case before the Ninth Circuit, commented,

“As Judge O’Scannlain’s dissent makes clear, this decision imperils our First Amendment freedoms and permits the will of the mob to rule our schools.  But this fight is far from over, we will be seeking review in the U.S. Supreme Court.”

On May 5, 2010, school officials from Live Oak High School in the Morgan Hill Unified School District, California prevented five students from wearing American flag t-shirts because the officials did not want to offend “Mexican” students on “their day.”  That day, some students at the school were celebrating the Mexican holiday known as Cinco de Mayo.  School officials approved the Cinco de Mayo celebration, which was co-sponsored by M.E.Ch.A, a school-sanctioned student group.

While school officials claimed that they were concerned about racial tension and potential threats of violence in light of an altercation that occurred between Mexican and American students on campus during a 2009 Cinco de Mayo celebration, the officials nonetheless approved the 2010 Mexican celebration, demonstrating that their fear of violence was nothing short of a pretext.

Moreover, despite banning the American flag, school officials permitted the Mexican students participating in the Cinco de Mayo celebration to wear clothing that had the colors of the Mexican flag.  The Ninth Circuit held that this was permissible because school officials were not concerned about any of the American students engaging in violence against the Mexican-flag wearing students.

The students wearing the American flag shirts had been on campus for over 3 hours when they were approached by an assistant principal and ordered to turn their shirts inside out.  When the students refused to disrespect the American flag, the school official directed them to the principal’s office where they were lectured on the importance of Cinco de Mayo and given the option of either removing their shirts or leaving school.  The students refused to remove the shirts, so they left school and then filed this civil rights lawsuit.

AFLC Senior Counsel David Yerushalmi commented,

“Unfortunately, this case is just one of many we are seeing where the courts are enforcing a heckler’s veto, thereby incentivizing and rewarding violence as a legitimate response to unpopular speech.  AFLC is committed to reversing this dangerous trend, which is a serious threat to the First Amendment.”

A petition for review to the U.S. Supreme Court is due within 90 days.

Read more about this case here.