That's how Judge Gould, concurring in the denial of rehearing en banc in Harper v. Poway Unified School Dist., describes a T-shirt that reads "Be Ashamed, Our School Embraced What God Has Condemned" and "Homosexuality Is Shameful."
I would surely not endorse not endorse the sentiments on the T-shirt; and such sentiments may indeed sometimes flow from "hate," whether of the "hate the sin, love the sinner" variety or of the "hate the sinner just as much as the sin" flavor. Yet if the label is apt for a T-shirt in a high school, it would apply pretty much as well to these sentiments everywhere. (The speech may be easier for offended people to avoid — or to deal with — in other contexts, but if it's "hate speech" it would still be "hate[ful]" even in those contexts.) And it could easily apply to any criticisms of homosexuality, whether or not they use the term "shameful," so long as they (in Judge Gould's words) "misusing biblical text to hold gay students to scorn" or presumably use other arguments for why homosexuality is improper.
This is all the more evidence, it seems to me, to reject the often-urged "hate speech" exception to the First Amendment, at least if one values debate about political and religious matters rather than coercive imposition of the government's preferred views. Judge Gould's opinion at least offers hope that he would limit the exception to speech in government-run K-12 schools. The calls for a "hate speech" First Amendment exception have generally not been so limited.
Judge O'Scannlain, joined by Judges Kleinfeld, Tallman, Bybee, and Bea, dissent from the denial of rehearing en banc, largely endorsing Judge Kozinski's dissent from the panel opinion. They are also kind enough to cite my post on the subject, which generally takes a view very much closer to the dissent's than to the majority's.
Many thanks to Charles Morse and Kimberly Kralowec for the pointer.
Related Posts (on one page):
- An Appellate Procedure Perspective on the High School Anti-Homosexuality T-Shirt Case:
- Supreme Court Vacates Reinhardt Anti-Homosexual T-Shirt Decision:
- High School Anti-Homosexuality T-Shirt Case Vacated as Moot:
- Harper v. Poway Unified School District and the Supreme Court:
- 4 Votes 4 Bong Hits 4 Jesus:
- "Hate Speech":
- Pro-Taliban Speech Constitutionally Protected, Criticisms of Homosexuality Unprotected:
- Sorry, Your Viewpoint Is Excluded from First Amendment Protection:
I wonder: how is minority status determined? Nationally? Districtwide? School by school? Grade by grade? Class by class? Under the panel's censorious adventurism, may an African-American student be permitted to wear a "I hate Whitey" T-shirt at a majority-white school but prohibited at a majority-black school? Or is this "minority" in the sense of "traditionally disparaged groups focused upon by academics?"
Ridiculous. And, ultimately, very unlikely to deveop to the the benefit of minority groups, when the worm turns, as it always does.
At least that is what I want for my children.
But the context in this case (not noted in the majority RHEB opinion) was what most would consider a "pro gay" event at the school which the wearer attended a few days before he wore it. The T Shirt message, considered as a forceful response, seems to me to be within the ambit of robust debate.
One way to deal with it would be to allow moderated discussion in the homeroom period, or other appropriate time, with a view toward influencing the wearer to consider the effect on others' feelings. Perhaps that educational point would have a moderating effect on future behavior.
The constitutional question only arises if robust speech is banned. Why take that step?
I suspect this will be reversed by SCOTUS. Another rap on Reinhart's knuckles.
Why the "but?"
But maybe some people like to have it both ways - the ACLU is a liberal isntitution because they are absolutist on government censoring speech, and liberals are the ones who want the government to censor speech. Sure.
Mmmmm, maybe because this ban, and the 9th circuit opinion upholding it, are basically fascist in nature?
On the flip side, I would heartily oppose this ban on a college campus. The audience there has reached nominal adulthood and is more able to choose whether or not to listen. Futher, almost nobody is forced to be exposed to the speaker for a significant period of time, so the speech is far less disruptive.
JA: I'm also pretty left on speech issues, but I agree with you in the main. The solution to me seems to be a content-neutral dress code (e.g., no clothing may display any writing or pictures--fine with me if this includes clothing labels, manufacturers will make plenty of clothes that fit the bill). Seems like a legit time-place-manner restriction if a decent record supports the conclusion that clothing can be disruptive to the educational process: we're not stopping you from publicly hating on gays, or supporting Israel, you just can't wear clothes that do it, because we as administrators have decided that "speech clothes" are a distraction.
But as always, the greater power doesn't include the lesser--the ability to ban all communicative clothing doesn't mean I can ban only the clothing on one side of an issue. There must be cases on this--I'm remembering one about a girl with a gang tatoo?--but I'm too busy to look this up right now...Anyone know off the top of their head?
(Here's an interesting question: Can a kid wear a T-shirt that reads "the Bible is a lie"? What about "Evolution is a lie?" I can't wait until my kids are old enough to go to school.).
1. open to new behavior or opinions and willing to discard traditional values
2. favorable to or respectful of individual rights and freedoms
3. (in a political context) favoring maximum individual liberty in political and social reform
I would overrule the opinion of Gould on several reasons one of which would be his obvious imposition of his own personal interpretation of the bible as that which is the only proper use of the bible as regards speech that purports to rely upon the bible. Now that seems to me to be a clear cut establishment of a judicial religion that says flat out in its ruling what is and what is NOT the proper religious dogma and biblical interpretations of the Bible, and then rules that biblical dogma and interpretations which vary from the officially established by judge Gould biblical dogma and interpretations are NOT protected by the first amendment. His statement implies rather strongly that biblical dogma and interpretations that match the official and true one's which Judge Gould has established for all of us might well be entitled to first amendment protection.
I think the hostility to the free exercise of religion intertwined with the free speech provisions of the first amendment is blindingly apparent in Judge Gould's opinion.
If you ask me the only hate speech is contained in Judge Gould's opinion and it reflects his hate for biblical doctrine and interpretation that varies from his own personal interpretations which he has ruled are the law of the land.
Says the "Dog"
So is the law hateful, the speech hateful, or the combination of the two? I find it hard to hold that speech is hateful while it is an accurate statement of the current law. Can anyone think of another statement that might be hateful while an accurate statement of the law? I am thinking maybe there is more stuff pre-Lawrence v. Texas or hate speech during WWII (Korematsu).
Is the Darwin Fish, properly speaking, a hate crime? It has no purpose except to taunt members of a particular religion, by apropriating one of their oldest and most cherished symbols, one adopted during a time of persecution....
You may discuss among yuorselves..
There is no other explanation for the current law regarding marriage. Homosexuality is afforded a far lesser status in the eyes of the law, i.e. the right to marriage. There is no rational explanation for this other than that homosexuality is viewed as shameful. They are lesser families and are afforded lesser rights.
I wonder -- would this mean that "Thou shalt not commit adultery" is banned because it might hurt the self-esteem of children who engage in sex outside of marriage or are the children of adulterers? Is "Thou shalt not kill" acceptable on a shirt opposing capital punishment or war, but not on one opposing abortion because of the deleterious impact on the psyches of girls who aborted?
And what of non-Christian texts? Would the wearing of a shirt citing the rabbbinic texts stating that Mary was a prostitute be banned based upon the reaction of Catholic students? What about Koranic texts calling Jews pigs and monkeys?
"Is the Darwin Fish, properly speaking, a hate crime? It has no purpose except to taunt members of a particular religion, by apropriating one of their oldest and most cherished symbols, one adopted during a time of persecution...."
Certainly not under the panel opinion in this case, which made it quite clear that only communications offensive to "minority" groups (whatever that means) may be banned.
Also, I believe that Reinhold and company torture the "right to be left alone" language of Tinker. My understanding of that is that it was intended to limit attacks on individual students, not amorphous groups. Indeed, to analogize from libel law, because of the general nature of the comments they should be held to not be making a reference to any particular member of the class referred to and therefore not actionable by individuals or the government.
Please remove your own knee from your mouth before replying in the future. I'm afraid you entirely missed the point of my post. At least some people got it.
Says the "Dog"
You say "here we have a federal judge ruling what speech can be censored on the basis of what that federal judge says is the "proper use" of the bible." No, it's a paragraph concurrence from a denial of en banc. It is not a "ruling." It has no precedential weight.
You say "I would overrule the opinion of Gould on several reasons one of which would be his obvious imposition of his own personal interpretation of the bible as that which is the only proper use of the bible as regards speech that purports to rely upon the bible." Could you explain to me the mechanism for "overruling" a concurrence from the denial of en banc?
You say "His statement implies rather strongly that biblical dogma and interpretations that match the official and true one's which Judge Gould has established for all of us might well be entitled to first amendment protection." Again, explain to me how a one-paragraph concurrence in the denial of en banc, that cites no authority, and has no value, represents "dogma . . . established for all of us"? I must have missed the part of the Constitution that gives such weight to procedural concurrences.
You say "I think the hostility to the free exercise of religion intertwined with the free speech provisions of the first amendment is blindingly apparent in Judge Gould's opinion . . . which he has ruled are the law of the land." I think it's obvious that you didn't read it, since you call it an "opinion," which it is not, and that he made that opinion the "law of the land," which he did not. He was not a judge on the panel that decided the case, nor did his concurrence make any law.
I stand by my original observation. I'm sorry that you're embarassed that you were called out on it.
Incidentally, didn't EV spend a few posts a month or so ago, explaining why it's childish to end all of your posts with an italicized "Says the Dog"? Interesting that you still do it.
Thanks for the analysis which in most respects is quite correct and fully demonstrates at the same time your failure to understand my post in the slightest. You've identified lots of trees there. You have them sorted by genus and phyla and correctly referred to their latin names. Sadly, you failed to recognize the forest in front of you. This is the analogy that applies to comments that so woefully and completely miss and fail to recognize or address in the slightest the point of my post.
Says the "Dog"
Oh and thanks for making it clear that Judge Gould's opinion is not his opinion. Such precision and clarity in your thinking. Its really astounding to watch.
Says the "Dog"
Finally, regarding my tag line at the end of my messages. If it bothers you and you think it a violation of some rule why don't you run to the nearest hall monitor and report it. Maybe, if you are lucky they will give you a hall monitor badge to wear. Then when you call people childish you will have the imprimitur of an official hall monitor badge to support your condemnations.
I know I'd certainly vote for you to get a hall monitor badge.
Says the "Dog"
The fact that you took great umbrage at a one-paragraph concurrence that you clearly did not read, railing against it assuming that it was the opinion of the court, is verification of the knee-jerk attitude displayed in everything you post here. I'm sorry that you are embarassed that someone called you out on it. But this site is well known as one that analyzes legal issues in a thoughtful manner, which is the opposite of what you do. Here's a tip: try reading something before you attack it. And when you get caught doing it, just own up to it.
Oh, and as to the tag line, just because it isn't against the rules, doesn't mean that it's not lame, childish, repetitive, and utterly unclever. I'm not sure if you think it adds gravitas to your posts, but it really doesn't.
Isn't it rather unseemly for a federal judge to discuss the correct interpretation of the bible, even in pure dicta in an irrelevant concurrence?
What is Gould's basis for claiming that the appellant is "misusing" the Bible? That seems to be a core theological question, and entirely outside the proper realm of a judge's official duties (though he is of course free to hold such an opinion in his personal life.)
Of course, that's not what he's saying. It seems pretty clear that Gould is not using the term "misused" in the sense that the kid has "misinterpreted" bible text. Context indicates that the text is "misused" in that it is pasted on a t-shirt for the purpose of "hold[ing] gay students to scorn." That is disruptive, and Gould believes that a school can regulate speech that is disruptive.
I'm sure others will disagree. But given that Gould cites no authority, and is merely explaining, in a very off-hand manner, his vote to not rehear the case en banc, it's hard to get all worked up over the concurrence.
Although it has very little to do with the legal discussions here, in the United States HIV is not sexually transmitted through sexual activity in a heterosexual relationship. In 99+% of cases males who are HIV positive acquired their condition from either homosexual behavior or through IVDU. That is not true in females or in males in Africa.
Here you are either deliberately telling a lie or again exposing your knee jerk ignorance of so many things biblical and people. I have never said or implied even indirectly any of the above. If you'd care to provide a reference to the appropriate quote of mine in this or any other post I've ever made in my entire life, I will be happy to recant. If you can't provide any such backup then in the future express your anti-christian anti-religious bigotry as your own personal lame opinion. Your own special kind of "hate speech" as it were.
What offends you the most people of faith or people who think they have a first amendment right to express disapproval of the pro-homosexual agenda?
Says the "Dog"
So if Gould had said instead in a very off-hand manner about his vote to not rehear the case en banc that "ignorant orthodox jews should keep to counting their money and leave homosexuals alone" that this also would be hard to get all worked up over? Afterall the comment would be just some irrelvant dicta in a meaningless concurrence, Right?
Says the "Dog"
Guess they don't teach this one anymore.
And, of course, it's no surprise that again, he ignores the substance of my later post, which quite plausibly explains that Gould's concurrence cannot be reasonably read as basing First Amendment protections on a "correct" biblical interpretation. But hey it's fun to build strawmen.
the form of a call for genocide, or in the form of a tee shirt
misusing biblical text to hold gay students to scorn, need not
under Supreme Court decisions be given the full protection of
the First Amendment in the context of the school environment...
So, Tom, would a tee shirt correctly using biblical text to hold gay students up to scorn be acceptable under the theory espoused by Gould? Who is to determine what constitutes misuse of the text and what constitutes the correct use of the text -- the religious believer engaging in speech putatively protected by the First Amendment, or a government official?
If some Asratu student (generally thought of as a white supremacist religion) included a fully accurate statement of his belief on a t-shirt that was hateful towards black students, or a Muslim student had a verbatim Koran quote that disparaged Jews or other "infidels", would you be just peachy with that?
Does it really come down to what the meaning of the word "is" is?
And you ignore the point here -- Gould's standard is the misuse of the text -- which requires that a state actor determine the correct use of Scripture.
The "Day of Silence" shirts didn't say "christian fundamentalists are shameful" or "christianity is shameful" so your comparison isnt' really apt. Despite what many fundamentalists think, the mere existence of gay people, and certain people's lack of hatred for them, is not the equivalent of an assault on Christian people.
Since when does government get to decide on the proper use of scripture?
Indeed, a Christian student wearng such a shirt is arguably fulfilling a religious duty.
2 Tim 3:16 All scripture is inspired by God and is useful for teaching, for refutation, for correction, and for training in righteousness.
The student is, in fact, engaging in an act of refutation of the pro-gay position, of correction of what he views as the erors of the school system in sponsoring/permitting the Day of Silence, and attempting to train/educate his fellow students in what he believes to be righteous living. Gould therefore seeks to impose his own interpretation of the proper use of scripture on young Mr. Harper. So while, by the direct words of Scripture, the student was properly using Scripture, Judge Gould would set teh Judicial Branch up as the arbiter of proper use and interpretation of Scripture.