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9th Kills Free Speech Twice: First T-Shirts, Then YouTube?

By William Peacock, Esq. | Last updated on

It's been a bad week for free speech, with censured shirts and prior restraints on speech.

We were all ready to lambast the Ninth Circuit's opinion in Dariano v. Morgan Hill, where the court allowed a school district to ban t-shirts with the American Flag on them (for safety!). Then, the court topped itself, with a idiotic takedown order of the infamous and also idiotic "Innocence of Muslims" video on YouTube, due to an actress's copyright claim over her fifteen seconds of footage.

It gets worse: the court also made their order under seal, with a gag order in place. Once, twice, three times a censor.

High School Kids Are Stupid

This case, as the Volokh Conspiracy notes, is all about Tinker and the heckler's veto.

A bunch of reportedly Caucasian kids, probably looking to get a reaction, hung an American flag on a tree on Cinco de Mayo and chanted "USA." Mexican kids, carrying a Mexican flag, got angry and hurled profanities. Things got ugly, but not quite violent.

A year later, some kids wore American flag t-shirts on Cinco de Mayo. The principal ordered them to take off the shirts or to go home with an excused absence. After they went home, the students received threats of violence.

The court, applying Tinker v. Des Moines's "substantial disruption" test (which allows speech to be restricted if it will prevent "substantial disruption of or material interference with school activities"), held that the principal's actions were constitutional.

The same test has been used to uphold schools' prohibition of Confederate flag attire, yet for some reason, this bothers us more. (Probably because the U.S. flag isn't a symbol of insurrection, slavery, and redneck racism.)

Personally, I have to agree with Volokh here: this may be constitutionally sound under Tinker, but it seriously sucks. It's allowing hecklers, who threatened gang violence, to force the school into censuring American flags. Yes, the apparent patriots were probably looking to rile up other students on Cinco de Mayo, but the remedy for speech is more speech, not violence. Schools should be reinforcing speech tolerance, not thuggery and censorship.

As is the 9th's YouTube Takedown

That case was bad, but what the Ninth did to Google and YouTube was arguably worse.

TechDirt has the full scoop on Garcia v. Google, but here's the short version: Kozinski penned a truly questionable 2-1 majority opinion holding that an actress has a copyright interest in her work in someone else's film. That's bad for Hollywood, YouTube-ers, and any schmuck with a video camera.

But it gets worse. Without even holding that infringement has occurred here, he ordered Google to take down the film and put a gag order in place.

To reiterate: Koz kills speech by ordering a takedown, then kills more speech with a gag order.

Google filed an emergency motion for a stay pending en banc review earlier today.

Which is worse: censuring the Stars and Stripes, or the YouTube double-down? Share your thoughts on Facebook.

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