Speech and Offense

This appeared in the Virgin Islands Daily News and the St. Croix Avis:

This week an Iranian newspaper was shut down by the government because the paper published a cartoon which mocked Iran’s Azeri minority, leading to riots in several cities. In India last week, Muslim clerics pledged to aid Christian groups by demonstrating to force the government to ban The Da Vinci Code. From February to May of this year, at least 962 people were killed or injured during riots sparked by the publication of cartoons in a Danish newspaper with satirical images of the prophet Muhammad.

It couldn’t happen in America, where the First Amendment to the United States Constitution guarantees freedom of speech. Yet something similar did happen in April; a Federal Circuit Court recognized the legitimacy of the rationale behind the Azeri riots in Iran, the efforts in India to ban a motion picture, and the violent protests over the Danish cartoons.

The case is Harper v. Poway, handed down by the Ninth Circuit Court of Appeals on April 20th. The Ninth Circuit hears appeals from Federal District Courts in several western states, including California. The issue in Harper was this: may a public high school prohibit students from wearing T-shirts with messages that condemn and denigrate other students on the basis of their sexual orientation? The court held that it could, but their logic presents major problems for free speech advocates.

The facts were as follows: in 2003 Poway High School permitted a student group, the Gay-Straight Alliance, to hold a Day of Silence intended to advocate tolerance of others, particularly those of a different sexual orientation. In that year incidents and altercations occurred on campus as a result of anti-homosexual comments made by various students. A week later a group of heterosexual students informally organized a Straight Pride Day, during which they wore t-shirts displaying derogatory comments about homosexuals. In 2004, the school permitted a second Day of Silence to be observed. A student named Tyler Harper, wore a t-shirt to school on that day on which the words “I will not accept what God has condemned” were handwritten on the front, and the words “Homosexuality is Shameful, Romans 1:27” were handwritten on the back. The following day he wore the same shirt with a slightly modified message.

The administration asked Harper to remove the shirt. He refused, and had to remain in the front office for the rest of the day. He was not suspended and no disciplinary record was placed in his file. There was no evidence of violence resulting from Harper’s shirt. Harper filed suit in the Federal District Court in California alleging infringement of various Constitutional rights, and asked for an injunction. The District Court dismissed some of his claims, and preserved others, and denied his request for an injunction. Harper filed an appeal with the Ninth Circuit.

The Ninth Circuit affirmed the District Court’s denial of the injunction. While the facts of the case are simple, the substantive and procedural issues were relatively complex; this gave the Ninth Circuit several options for its decision. The Ninth Circuit could have affirmed on purely procedural grounds, but instead ruled in a way that should disturb any informed advocate of democracy and free speech.

The Circuit Court held that Harper’s right to free speech could be limited because the content of his speech collided with the right of other students to be free from injury by “verbal assaults on the basis of a core of identifying characteristics such as race, religion, or sexual orientation.” The Court held that this “right” could be violated even if the speaker of the alleged verbal assaults “does not directly accost individual students with his remarks.” The Court further stated that:

Speech that attacks high school students who are members of minority groups that have historically been oppressed, subject to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn.

The “right” identified by the Ninth Circuit is not found in the Constitution; in fact, it is antithetical to the First Amendment. It is in fact the same right claimed by the Azeris in Iran, the Indians trying to ban The Da Vinci Code, and the Muslims rioting because of Danish cartoons. That “right” is the Right Not To Be Offended.

The Ninth Circuit held that Harper’s right to express himself was trumped by the “right” of gay students to be shielded from offensive remarks. This “right” directly conflicts with the First Amendment. I don’t agree with Harper or his t-shirt. But freedom of speech is worth letting people like Harper wear t-shirts that say foolish things to school.

In fact, offending people is not only a right in a democratic society, but an obligation. The British were offended by the Declaration of Independence. Slave owners were offended by the Emancipation Proclamation. Polite society was offended by the Suffragettes. Segregationists were offended when Eisenhower sent troops to integrate Central High School in Little Rock. Jewish residents of Skokie, Illinois, were offended when Jewish lawyers from the ACLU defended the right of American Nazis to march through their suburb. But the ACLU lawyers recognized that free speech is important enough so that it has to be defended even when the speakers’ messages are odious. There has never been a time or place when human liberty was advanced without offending someone.

Voltaire urged people to, “Think for yourselves and let others enjoy the privilege to do so too.” This is the mantra of a free society. The Ninth Circuit failed to heed it, and we can only continue to do so at our peril.