9th Circuit decision in high school free speech case causes dismay

The 9th Circuit U.S. Court of Appeals rejected a bid for an en banc hearing of case brought by Live Oak High School students of Morgan Hill  in North California after the administration kept them from wearing U.S. flag T-shirts on Cinco de Mayo day in 2010. A three-judge panel of the court ruled in February that the administration was acting lawfully given the potential of violence or disruption provoked by the wearing of the shirts. (Courthouse News Service, September 18, 2014, by Elizabeth Warmerdam)

The 9th Circuit’s decision was met with some harsh criticism. A writer for the National Review characterized the decision as upholding the “heckler’s veto” and thus providing support for bullies who threaten those making statements they don’t like. (National Review Online, September 17, 2014, by David French)

Eugene Volokh echoed French’s view also quoting the dissenting judges who wrote in part: “Rather than acting to protect the students who were peacefully expressing their views, Live Oak decided to suppress the speech of those students because other students might do them harm. Live Oak’s reaction to the possible violence against the student speakers, and the panel’s blessing of that reaction, sends a clear message to public school students: by threatening violence against those with whom you disagree, you can enlist the power of the State to silence them.” (The Volokh Conspiracy in The Washington Post, September 17, 2014)