First Amendment Exception for “Racially Hostile or Contemptuous Speech,” Including Display of the Confederate Flag, in K-12 Public Schools — Denial of En Banc Rehearing by Sixth Circuit

As I blogged a few months ago, a two-judge majority on a Sixth Circuit panel held in Defoe v. Spiva that there was such an exception; to quote the panel,

A public high school that can put reasonable limits on drug-related speech by students [referring to Morse v. Frederick, which upheld such restrictions –EV] can put reasonable and even-handed limits on racially hostile or contemptuous speech, without having to show that such speech will result in disturbances. Expressions of racial hostility can be controlled in the public schools even if students in the attacked racial group happen to be mature, goodnatured, and slow to react. Schools are places of learning and not cauldrons for racial conflict. Moreover, expression of racial hostility can be controlled in the public schools even though such expressions are constitutionally permitted in newspapers, public parks, and on the street. Public school students cannot simply decide not to go to school.

Of course, under Tinker v. Des Moines Indep. School. Dist (1969), all student speech — whether racially offensive or not — could be restricted if there is substantial reason to think that the speech will likely cause a material disruption. But the panel majority here concluded that “racially hostile or contemptuous speech,” including the display of a confederate flag, can be punished even without such a showing of likely disruption.

I thought at the time of the panel opinion — and continue to think now — that this is wrong, for the reasons I gave when criticizing a similar Ninth Circuit panel majority opinion about anti-gay speech. (My summary of my argument was that the decision “is a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be free from offensive viewpoints. It’s a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.”) Nor do I think that Morse v. Frederick, despite its flaws, authorizes such restrictions; see here for an extended discussion, but the short summary is that both the majority and the Alito/Kennedy concurrence specifically limited Morse to speech that did not express a “political … message”:

[From the majority:] Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, this is plainly not a case about political debate over the criminalization of drug use or possession.

[From the Alito/Kennedy concurrence:] 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.”

And the wearing of a confederate flag does send a political message, and certainly a comment on a “political or social issue” — whether the message is that the Confederacy was right to secede, that the South should be proud of its Confederate heritage, or that white supremacy is a good idea. The intended and likely understood message may vary from context to context, but the message remains political.

Unfortunately, the Sixth Circuit just rejected a petition for rehearing en banc, over a dissent by Judge Boggs; here are the opening paragraphs of that dissent:

The panel majority eviscerates the core holding of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) — that student speech can be suppressed only based on its disruptive potential, not on its content. There is no indication in Tinker that its rules are any different if the speech at issue is deemed, by either a school or an appellate court, to be offensive, “hostile,” or “contemptuous.” See Defoe v. Spiva, 625 F.3d 324, 338 (6th Cir. 2010). Nor is there any indication that such a judgment would change the basic First Amendment values that Tinker enshrines.

The panel majority rests its remarkable conclusion on Morse v. Frederick, 551 U.S. 393 (2007), where the Court found the speech in question — a 14-foot banner with the message “BONG HiTS 4 JESUS” — to be promoting illegal drug use. The majority does so despite the clear warnings in Morse, especially in Justice Alito’s decisive concurring opinion, that the Court was not undermining the basic holding of Tinker, but was simply allowing an exception for speech promoting drug use, which is both illegal and directly contrary to a tenet of the school system. Morse does not give the slightest hint that schools are authorized to suppress any speech that either they or an appellate court deems contrary to the school’s “mission” or “core values.”

Wholly disregarding these warnings, the majority opinion asserts that this case is controlled by Morse because “racially hostile or contemptuous” can be substituted for “illegal drug use.” Defoe, 625 F.3d at 338–39 (“If we substitute ‘racial conflict’ or ‘racial hostility’ for ‘drug abuse,’ the analysis in Morse is practically on all fours with this case.”). That is grammatically true, but it is equally true if you substitute “religious dogma,” “Republican propaganda,” or “seditious libel.” Morse does not authorize suppression on any of those grounds either, but the panel’s ipse dixit reading of Morse would support such a holding just as strongly as the one it makes.

As usual, the odds are against the Supreme Court granting certiorari, but I hope that the combination of (1) the forceful dissent by Judge Boggs (a noted conservative), (2) the majority’s inconsistency with the Alito/Kennedy Morse opinion, and (3) the support of the ACLU (which I assume will strongly chime in on the certiorari petition, as it did on the petition for rehearing en banc) will sway the Justices in this instance.

Note, by the way, that the majority opinion for the Sixth Circuit panel is the one that is labeled a concurrence by two judges. As the ostensible panel opinion says, “To the extent that there are any differences between this opinion and the concurring opinion, the concurring opinion shall govern as stating the panel’s majority position.” My criticisms are of this concurring opinion. Thanks to Jason Miller for the pointer to the en banc decision.