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SCOTUS Won't Hear Students' American Flag Free Speech Case

By Casey C. Sullivan, Esq. | Last updated on

The Supreme Court won't be hearing an appeal from high school students who sued after school administrators asked them to remove American flag T-shirts or take excused leave. That leaves intact the Ninth Circuit's ruling from a year ago, holding that the school did not violate the students' rights when it asked them to change their clothing in an attempt to avoid violence.

Plaintiffs, three students from Morgan Hill in northern California, had argued that their First Amendment free speech rights were violated when they were asked to cover up their flags on Cinco de Mayo while students in Mexican flags were not.

On the Fifth of May ...

A year prior, a group of white, non-Hispanic students had reportedly hung an American flag on a tree and chanted USA during Cinco de Mayo. Though we're sure their intent wasn't to be provocative, the chanting led to a confrontation with Mexican students, who hurled profanities. 

The following year, students attempted to continue the holiday tradition by wearing American flag t-shirts. They were asked to change their outfits, turn their shirts inside out, or take an excused absence.

Preventing Violence Versus Protecting Speech

The district court and Ninth Circuit had both found the school's actions to be acceptable. Though the Supreme Court has said that students don't lose their free speech rights at the schoolhouse gate, under Tinker v. Des Moines schools are allowed to restrict speech that is likely to cause a substantial disruption. The risk of violence that the school claimed existed was enough to bring the incident into Tinker's domain, the courts ruled.

When the Ninth Circuit refused to rehear the case en banc, three judges dissented, characterizing the case as one of a "heckler's veto." The heckler's veto implies that critics of speech can silence others through threatening violence. Under this view, it is up to the government, here the school, to protect the free speech rights of the threatened speakers, not to silence them in order to prevent the violence of others.

What do you think? Did the Supreme Court make the right decision in letting the case end here? Let us know via via Twitter (@FindLawLP) or Facebook (FindLaw for Legal Professionals).

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