In its Sept. 17 order declining the student’s request for an en banc hearing, the federal appeals court stated that “given the history of prior events at the school, including an altercation on campus, it was reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”
On May 5, 2010, the four Caucasian students from Live Oak High School in Morgan Hill, CA were “asked to remove or turn inside out t-shirts bearing images of the American flag” on the Mexican holiday.
School administrators said that they feared the students would face violence from Latino students for wearing the American flag-themed clothing during the school-sanctioned celebration because there had been at least 30 fights between Caucasian and Hispanic students on campus during the preceding six years.
Give that history, the judges on the appellate panel ruled that school officials “acted properly to prevent a substantial and material disruption of school activities.”
However, in his dissenting opinion, Judge Diarmuid O’Scannlain wrote that "the panel condones the suppression of the students’ speech for one reason: other students might have reacted violently against them. Such a rationale contravenes fundamental First Amendment principles.”
“The freedom of speech guaranteed by our Constitution is in greatest peril when the government may suppress speech simply because it is unpopular...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,” he noted.
O’Scannlain added that the order “permits the will of the mob to rule our schools….and condones using the heckler’s veto as a basis for suppressing student speech.”
Pointing out that “by threatening violence against those with whom you disagree, you can enlist the power of the State to silence them,” O’Scannlain wrote that “in this case, the disfavored speech was the display of the American flag. But let no one be fooled...The next case might be a student wearing a shirt bearing the image of Che Guevara, or Martin Luther King, Jr., or Pope Francis.
“It might be a student wearing a President Obama 'Hope’ shirt, or a shirt exclaiming “Stand with Rand!” It might be a shirt proclaiming the shahada, or a shirt announcing ‘Christ is risen!’
“It might be any viewpoint imaginable, but whatever it is, it will be vulnerable to the rule of the mob. The demands of bullies will become school policy.
“That is not the law,” he stated.
"It is truly a sad day when government officials are permitted to ban the American flag on a public high school campus for any reason," said Robert Muise, co-founder and senior counsel at the American Freedom Law Center, who argued on behalf of the students before the 9th Circuit.
"The liberal judges on the court were forced to do rhetorical backflips to come to this outrageous decision," said Freedom X CEO William Becker, who intends to take the case all the way to the U.S. Supreme Court.