That better be overturned
The good news is the decision came down from the Ninth Circuit -- the most overturned appeals court in the nation. The bad news is Thursday's decision in the case of Harper v. Poway Unified School District has the effect of silencing religious speech.
If you're interested in reading the legal opinions, the majority opinion can be found here. The far better read is Judge Alex Kozinski's dissent, which can be found here. [Both links are to PDF documents]
I've read both of the documents, and Kozinski's dissent is withering. Kozinski skewers the poorly reasoned majority opinion that would make any speech that might make any identifiable minority uncomfortable unworthy of First Amendment protection. Kozinski also makes it clear that the two justices in the majority are acting as a superlegislature, and not judges.
For those who are unfamiliar with the case, I blogged about it 1 1/2 years ago. To summarize, Chase Harper wore a T-Shirt the day after a school-allowed (if not promoted and sanctioned) "Day of Silence" in support of homosexual students that read "homosexuality is shameful." For this he was removed from class and segregated for the day and forced to do homework.
I realize that administrators have been put in a tough position in this case -- but it was a position that they got themselves into. You can either ban the "Day of Silence" and Harper's T-Shirt, or you can allow them both -- you can't do one and not the other, which is what they did.
UCLA law professor Eugene Volokh, who is quoted in Kozinski's dissent, has an excellent analysis of the case here. I encourage you to read it.
Thursday's decision was an outrageous assault on the First Amendment. These judges who fancy themselves the defenders of the oppressed need to take a good long look at themselves in the mirror, because they're not defending the oppressed, they've become the oppressors.
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The problem with all of these cases, including Tinker, is that they allow people who object to speech to react violently to it, which then makes the speech "disruptive." We need a principle in law that only the reaction to speech can be disruptive.
If Blogger comes up again in my lifetime, I will be sure to write on this decision.
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The Hate Speech Ruling Crits Were Waiting For...
The 9th Circuit has just issued a 2-1 decision in Harper v. Poway Unified School District. The majority opinion (linked above) was by Stephen Reinhardt, Judge Alex Kozinski dissented here.
First, the facts. Stephen Harper is a student at Poway Uni.....
[...] There’s another thoughtful article on the local case I mentioned earlier this week about a student who wore an “Homosexuality is Shameful” T-Shirt to school the day after a Gay/Lesbian sponsored “Day of Silence.” The piece by Dale Carpenter makes the argument that current law, the Tinker case dealing with Vietnam-era anti-war protests, is bad precedent and the Supreme Court should “fix” it by granting schoolteachers and administrators greater latitude over determining what is disruptive and what is not. [...]
[...] In other news, the Ninth Circuit Court of Appeals — the one with all the liberal, free speech absolutists — still thinks believes that a T-shirt stating simply that “homosexuality is shameful” is beyond the pale. [...]
[...] For those of you interested in a more thoughtful ruling on the case, you should check out the link to Appeals Court Judge Alex Kozinski’s dissent in an earlier ruling in this case in this post. [...]
[...] with the 9th Circuit Court of Appeals decision in the Harper v. Poway Unified School District ruling from last year. In that case, Harper was prohibited from wearing a anti-gay T-shirt by school officials who feared [...]