As some may have read in the news recently, the 9th Circuit Court of Appeals essentially legalized what is sometimes referred to as the “heckler’s veto,” generally a prohibition of the free exercise of speech and expression rationalized on the basis that such speech might or would likely incite violence or other general disorder from opponents of that expression. In other words, if a given party’s (i.e., the heckler) reaction to certain speech/expression is likely to be violent then this violence becomes a de facto veto against the free exercise of that speech.
In this particular case, a San Jose high school forbade students from wearing American-oriented memorabilia such as t-shirts and hats on Cinco de Mayo, for fear that cultural and/or racial contentions would escalate to violence. Apparently, such contentions had done so in the past on this day, a point that the court specifically considered in its decision. But the substantive question here should be, if two people engage in fisticuffs over simple imagery on a t-shirt, how is it logical, ethical, or otherwise sensible that the wearer of the shirt must change their behavior on pain of state-wielded force, rather than the violent aggressor him- or herself? Since when does principle favor the aggressor over the expresser – particularly in the context of something as relatively benign as the imagery of a flag – as is implied with this ruling?
In its broader context, all speech – at least speech that inherently lends itself to needing protection pursuant to the First Amendment – has significant potential to catalyze disagreement, contention, and even violent responses from its detractors. Protection of individual rights such as exercising this kind of speech is precisely why a government exists in the first place. It is childishly self-evident that if everyone agreed with all speech uttered or otherwise expressed, there would be no need or purpose for its protection at all.
So instead of protecting speech in the face of violence, which is again the very end of the First Amendment in particular, the 9th Circuit Court erred on principle and sided with simple expediency by abolishing the right to free expression to appease the detractors. This decision can rightly be characterized as the court making the easy choice rather than the right one. The appropriate response would have been to clearly reassert the individual right of free expression and to hold those who would respond to that speech with violence accountable to consequences commensurate with due process. Otherwise, why have laws and organizational (i.e., school) rules prohibiting violence at all? According to this implied logic, we should simply ban all speech that is likely or has the potential to cause violence – a clear violation of both the spirit and letter of the First Amendment.
Whether intended or not, narrow or broad, this ruling has the net effect of legitimizing to a certain degree those that would wield violence against others as a response to the latters’ individual or collective expression. If the opposite had occurred at this high school – that is, students of Mexican heritage were denied the right to wear attire with Mexican flags and color schemes upon them because some members of the remaining student body might fight with them – the public and the court would have likely and rightly found such a policy discriminatory and demanded its annulment. We would have insisted that the violence-wielders be held accountable in protecting the former students’ right to wear whatever they want without fear of unpunished violent reprisal. The First Amendment – particularly as it must be viewed in conjunction with the Fifth Amendment’s Due Process Clause and the Fourteenth Amendment’s Equal Protection Clause – requires the same standard be applied evenly across the board, so to speak.
The court simply got this one wrong, as it so often does. This case is currently on appeal.