Freedom of Speech, Unless It's Offensive to Someone

Eugene Volokh comments at length on a decision by the Ninth Circuit Court that appears to be a big hit to freedom of speech.

Harper's speech [expressing an anti-homosexual view on a T-shirt] is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" -- which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations -- are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."

One's agreement or disagreement with Harper's view doesn't really matter. The court says he is not free to express that view because it might hurt the self-esteem of someone else. Isn't the whole point of freedom of speech is that it applies particularly to speech that we don't like? If it only protected speech we like, why would we specifically need a right to it. No one will ever take away the right to say nice things. The Constitution specifically enumerates speech as a freedom to protect that which would be offensive.

This ruling, should it stand, would have a dramatic cascade affect on speech everywhere if the standard is that only speech that offends no one is free. In an age of the professionally offended, someone will always be offended by something. Young Mr. Harper was apparently offended by a pro-gay-rights event at his school, which prompted the T-shirt. I guess, then, that event should not have been protected. As Volokh points out, this ruling would ban things like displays of the Confederate battle flag, because those may be offensive to black Americans.

Again, agreeing or disagreeing with a viewpoint is not the point. I certainly do not agree with the KKK or some neo-Nazi movement. But that does mean the government should have the authority to clamp down on those groups and prevent them from expressing their views. As soon as we decide the government has that authority, where does it stop? What other views do we start squeezing out of the public arena because the powers that be find them offensive?

Volokh's summary:

This is a very bad ruling, I think. It's a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It's an opening to a First Amendment limited by rights to be free from offensive viewpoints. It's a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.

robbbbbb writes

Harper was responding to a school-sponsored event. He disagreed with the viewpoint being expressed. So he expressed a contrary viewpoint. The government, in the person of his public school system principal, shuts down that viewpoint. There is only one viewpoint allowed, and it is the one the school system is preaching. Your viewpoint is wrong, kid, and we're going to make you think right. On an issue of some contention the school is only allowing one viewpoint, because the other side is "offensive."

Invert the political sides on this particular decision, if you will. A student comes to my wife's class wearing a t-shirt that says, "The Catholic Church is Wrong about Birth Control." My wife objects, and tells the student (based on Circuit Court precedent!) to get rid of the t-shirt or get out of her class. Is that an abuse of power by the teacher?

This is the kind of thing you get when you give the government the authority to control the views that people can express.