throbber
NO.
`
`In the Supreme Court of the United StatesIn the Supreme Court of the United States
`In the Supreme Court of the United States
`
`In the Supreme Court of the United StatesIn the Supreme Court of the United States
`
`JOHN DARIANO; DIANNA DARIANO, on behalf of their
`minor child, M.D.; KURT FAGERSTROM; JULIE ANN
`FAGERSTROM, on behalf of their minor child, D.M.;
`KENDALL JONES; JOY JONES, on behalf of their minor
`child, D.G.,
`
`v.
`
`Petitioners,
`
`MORGAN HILL UNIFIED SCHOOL DISTRICT; NICK
`BODEN, in his official capacity as Principal, Live Oak High
`School; MIGUEL RODRIGUEZ, in his individual and official
`capacity as Assistant Principal, Live Oak High School,
` Respondents.
`
`On Petition for Writ of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`PETITION FOR WRIT OF CERTIORARI
`
`ROBERT JOSEPH MUISE
` Counsel of Record
`American Freedom Law Center
`P.O. Box 131098
`Ann Arbor, MI 48113
`(734) 635-3756
`rmuise@americanfreedomlawcenter.org
`ERIN MERSINO
`Thomas More Law Center
`24 Frank Lloyd Wright Drive
`P.O. Box 393
`Ann Arbor, MI 48106
`(734) 827-2001
`
`WILLIAM JOSEPH
` BECKER, JR.
`Freedom X
`11500 Olympic Blvd.
`Suite 400
`Los Angeles, CA 90064
`(310) 636-1018
`Affiliated Counsel with
`The Rutherford Institute
`
`Counsel for Petitioners
`
`Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
`
`

`
` i
`
`QUESTION PRESENTED
`
`On May 5, 2010, students at a California public
`high school were directed to remove their American
`flag shirts because school officials thought that other
`students who were celebrating Cinco de Mayo might
`react negatively to the pro-America message.
`
`As Ninth Circuit Judge O’Scannlain observed in his
`dissent from the denial of rehearing en banc:
`
`[I]t is a foundational tenet of First Amendment
`law that the government cannot silence a
`speaker because of how an audience might react
`to
`the speech.
`
`It
`is
`this bedrock
`principle—known as
`the heckler’s veto
`doctrine—that the panel overlooks, condoning
`the suppression of free speech by some students
`because other students might have reacted
`violently.
`
`In doing so, the panel creates a split with the
`Seventh and Eleventh Circuits and permits the
`will of the mob to rule our schools.
`
`App. 5 (dissent).
`
`The question presented is whether the Ninth
`Circuit erred by allowing school officials to prevent
`students from engaging in a silent, passive expression
`of opinion by wearing American flag shirts because
`other students might react negatively to the pro-
`America message, thereby incorporating a heckler’s
`veto into the free speech rights of students contrary to
`Tinker v. Des Moines Independent Community School
`District, 393 U.S. 503 (1969), and the decisions of other
`United States courts of appeals.
`
`

`
` ii
`
`PARTIES TO THE PROCEEDING
`
`The Petitioners are John Dariano and Dianna
`Dariano, on behalf of their minor child, M.D.; Kurt
`Fagerstrom and Julie Ann Fagerstrom, on behalf of
`their minor child, D.M.; and Kendall Jones and Joy
`Jones, on behalf of their minor child, D.G. (the students
`at Live Oak High School, who were minors at the time,
`are collectively referred to as “Petitioners”).
`
`The Respondents are Morgan Hill Unified School
`District; Nick Boden, in his official capacity as
`Principal, Live Oak High School; and Miguel
`Rodriguez, in his individual and official capacity as
`Assistant Principal, Live Oak High School (collectively
`referred to as “Respondents”).
`
`

`
` iii
`
`TABLE OF CONTENTS
`
`QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . .
`
`i
`
`PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii
`
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v
`
`OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`CONSTITUTIONAL PROVISION INVOLVED . . . 1
`
`STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1
`
`REASONS FOR GRANTING THE PETITION . . . . 4
`
`I. The Ninth Circuit’s Decision Conflicts with
`Tinker, Incorporates a “Heckler’s Veto” into
`the First Amendment, and Creates a Circuit
`Split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`
`A. The Ninth Circuit’s Decision Conflicts with
`Tinker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`
`B. The Ninth Circuit’s Decision Impermissibly
`Incorporates a Heckler’s Veto into the First
`Amendment
`. . . . . . . . . . . . . . . . . . . . . . . . . . 9
`
`C. The Ninth Circuit’s Decision Creates a
`Circuit Split . . . . . . . . . . . . . . . . . . . . . . . . . 13
`
`II. The Ninth Circuit’s Reliance on Confederate
`Flag Cases to Justify Banning the American
`Flag Is Wholly Misplaced . . . . . . . . . . . . . . . . . 16
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
`
`

`
` iv
`
`APPENDIX
`
`Appendix A Order and Amended Opinion in the
`United States Court of Appeals for the
`Ninth Circuit
`(September 17, 2014) . . . . . . . . . . App. 1
`
`Appendix B Order Granting Defendants’ Motion
`for Summary Judgment and
`Judgment
`in the United States
`District Court
`for the Northern
`District of California, San Francisco
`Division, NO. C 10-02745 JW
`(November 8, 2011) . . . . . . . . . . App. 38
`
`

`
` v
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Bethel Sch. Dist. v. Fraser,
`478 U.S. 675 (1986) . . . . . . . . . . . . . . . . . . . . . . 18
`
`Brandenburg v. Ohio,
`395 U.S. 444 (1969) . . . . . . . . . . . . . . . . . . . . . . 11
`
`Chaplinsky v. New Hampshire,
`315 U.S. 568 (1942) . . . . . . . . . . . . . . . . . . . . . . 11
`
`Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty.
`Sheriff Dep’t,
`533 F.3d 780 (9th Cir. 2008) . . . . . . . . . . . . . 9, 10
`
`Denno v. Sch. Bd. of Volusia Cnty., Fla.,
`218 F.3d 1267 (11th Cir. 2000) . . . . . . . . . . . . . 18
`
`Forsyth Cnty. v. Nationalist Movement,
`505 U.S. 123 (1992) . . . . . . . . . . . . . . . . . . . . . . 10
`
`Holloman ex rel. Holloman v. Harland,
`370 F.3d 1252 (11th Cir. 2004) . . . . . . . . . . 14, 15
`
`Lewis v. Wilson,
`253 F.3d 1077 (8th Cir. 2001) . . . . . . . . . . . . . . 10
`
`McCollum v. Bd. of Educ.,
`333 U.S. 203 (1948) . . . . . . . . . . . . . . . . . . . . . . . 9
`
`Morse v. Frederick,
`551 U.S. 393 (2007) . . . . . . . . . . . . . . . . . . . . . . 16
`
`Scott v. Sch. Bd. of Alachua Cnty.,
`324 F.3d 1246 (11th Cir. 2003) . . . . . . . . . . . . . 18
`
`Simon & Schuster, Inc. v. Members of N.Y. State
`Crime Victims Bd.,
`502 U.S. 105 (1991) . . . . . . . . . . . . . . . . . . . . . . 12
`
`

`
` vi
`
`Smith v. Goguen,
`415 U.S. 566 (1974) . . . . . . . . . . . . . . . . . . . . . . 17
`
`Texas v. Johnson,
`491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . 12, 17
`
`Tinker v. Des Moines Indep. Cmty.
`Sch. Dist.,
`393 U.S. 503 (1969) . . . . . . . . . . . . . . . . . . passim
`
`United States v. Alvarez,
`132 S. Ct. 2537 (2012) . . . . . . . . . . . . . . . . . . . . 11
`
`Virginia v. Black,
`538 U.S. 343 (2003) . . . . . . . . . . . . . . . . . . . . . . 11
`
`W.V. State Bd. of Educ. v. Barnette,
`319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . 9
`
`Zamecnik v. Indian Prairie Sch. Dist. No. 204,
`636 F.3d 874 (7th Cir. 2011) . . . . . . . . . . . . 13, 14
`
`CONSTITUTION AND STATUTES
`
`U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim
`
`28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`RULES
`
`Sup. Ct. R. 10(a)
`
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`
`Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`
`

`
` 1
`
`PETITION FOR WRIT OF CERTIORARI
`
`OPINIONS BELOW
`
`The opinion of the court of appeals, as amended,
`appears at App. 1, 20-37 and is reported at 767 F.3d
`764. The opinion of the district court appears at App.
`38-62 and is reported at 822 F. Supp. 2d 1037. The
`dissent from the denial of the petition for rehearing en
`banc appears at App. 5-20 and is reported at 767 F.3d
`764.
`
`JURISDICTION
`
`The judgment of the court of appeals was entered on
`February 27, 2014. App. 2. A petition for rehearing
`was denied on September 17, 2014. App. 4. The
`jurisdiction of this Court is invoked under 28 U.S.C.
`§ 1254(1).
`
`CONSTITUTIONAL PROVISION INVOLVED
`
`The Free Speech Clause of the First Amendment
`provides, in relevant part, “Congress shall make no law
`. . . abridging the freedom of speech.” U.S. Const.
`amend. I.
`
`STATEMENT OF THE CASE
`
`On May 5, 2010, Petitioners and two other students
`“wore American flag shirts to school.” App. 22. On this
`day, some students were celebrating the holiday known
`as Cinco de Mayo, which, in the United States, is a
`celebration of Mexican culture and heritage. See App.
`21. School officials had approved the on-campus,
`student-sponsored celebration of the holiday, which
`“was presented in the ‘spirit of cultural appreciation.’”
`App. 21.
`
`

`
` 2
`
`Because it was Cinco de Mayo, Respondents were
`concerned that some students on campus might react
`negatively toward Petitioners’ American flag shirts.
`Consequently, “Boden directed Rodriguez to have the
`students either turn their shirts inside out or take
`them off.” App. 23. Petitioners refused.
`
`Respondents’ directive was in response to a few
`vague comments: a “Caucasian student” told Rodriguez
`that “there might be some issues”; a female student
`told Rodriguez that “there might be problems”; and “[a]
`group of Mexican students” asked Rodriguez why
`Petitioners “get to wear their flag out when we [sic]
`don’t get to wear our [sic] flag?”1 App. 23.
`
`Respondents also allegedly took into account an
`incident that occurred at Live Oak High School during
`a 2009 Cinco de Mayo Celebration involving a group of
`Caucasian students and a group of Mexican students.
`App. 21. The incident was triggered by a Mexican
`student parading around campus with a Mexican flag.
`App. 22. In response to this display of Mexican
`nationalism, some Caucasian students hung a
`makeshift American flag on a tree and began chanting
`“U–S–A.” App. 22. “[I]n response to the white
`students’ flag-raising, one Mexican student shouted
`“f*** them white boys, f*** them white boys.” App. 22.
`Rodriguez intervened and asked the Mexican students
`
`1 The record makes a distinction between “Caucasian” and
`“Mexican” students. The Ninth Circuit “use[d] the ethnic and
`racial terminology employed by the district court (Caucasian,
`Hispanic, Mexican). For example, the district court at times
`referred to students of Mexican origin born in the United States
`and students born in Mexico collectively as ‘Mexican.’” App. 21
`n.2.
`
`

`
` 3
`
`to stop using profane language, to which one Mexican
`student responded, “But Rodriguez, they are racist.
`They are being racist. F*** them white boys. Let’s
`f*** them up.” App. 22.
`
`Despite Respondents’ alleged concerns, “the
`following facts are undisputed: ‘no classes were delayed
`or interrupted by [Petitioners’] attire, no incidents of
`violence occurred on campus that day, and prior to
`asking [Petitioners] to change . . . Rodriguez had heard
`no reports of actual disturbances being caused in
`relation to [Petitioners’] apparel.’” App. 9 n.2
`(dissent).2
`
`Moreover, despite Respondents’ concerns related to
`the 2009 Cinco de Mayo incident and their claims of
`racial tension, see App. 27, Boden approved the Cinco
`de Mayo activities for May 5, 2010, see App. 21.
`
`Because Petitioners were not allowed to wear their
`American flag shirts to school on Cinco de Mayo, they
`brought a civil rights lawsuit against Respondents,
`alleging, inter alia, a violation of their First
`Amendment right to freedom of expression. App. 20.
`
`The district court granted Respondents’ motion for
`summary judgment and denied Petitioners’ motion for
`summary judgment, concluding that “the school
`officials reasonably forecast that [Petitioners’] clothing
`could cause a substantial disruption with school
`activities, and therefore did not violate the standard set
`forth in Tinker by requiring that [Petitioners] change.”
`App. 54.
`
`2 Judge O’Scannlain’s dissent from the denial of rehearing en banc
`is cited and referred to throughout this petition as the “dissent.”
`
`

`
` 4
`
`The Ninth Circuit affirmed the district court’s
`decision and denied Petitioners’ rehearing request over
`the dissent of Circuit Judge O’Scannlain, who was
`joined by Circuit Judges Tallman and Bea. App. 1-37.
`
`REASONS FOR GRANTING THE PETITION
`
`I. The Ninth Circuit’s Decision Conflicts with
`Tinker, Incorporates a “Heckler’s Veto” into
`the First Amendment, and Creates a Circuit
`Split.
`
`The important constitutional question this case
`presents for the free speech rights of students cannot
`be overstated.
` The Ninth Circuit’s
`“opinion
`contravenes foundational First Amendment principles,
`creates a split with the Seventh and Eleventh Circuits,
`and imperils minority viewpoints of all kinds.”3 App.
`19 (dissent); see Sup. Ct. R. 10(a) & (c).
`
`Indeed, if this decision is permitted to stand, it will
`have a detrimental impact on all student speech by
`rewarding violence over civil discourse and effectively
`invalidating Tinker. As Judge O’Scannlain forewarned:
`
`In this case, the disfavored speech was the
`display of an American flag. But let no one be
`fooled: by interpreting Tinker to permit the
`heckler’s veto, the panel opens the door to the
`
`3 Judge O’Scannlain summed up the question presented by this
`case as follows: “I would hold that the reaction of other students to
`the student speaker is not a legitimate basis for suppressing
`student speech absent a showing that the speech in question
`constitutes fighting words, a true threat, incitement to imminent
`lawless action, or other speech outside the First Amendment’s
`protection.” App. 19.
`
`

`
` 5
`
`suppression of any viewpoint opposed by a vocal
`and violent band of students. The next case
`might be a student wearing a shirt bearing the
`image of Che Guevara, or Martin Luther King,
`Jr., or Pope Francis. It might be a student
`wearing a President Obama “Hope” shirt, or a
`shirt exclaiming “Stand with Rand!” It might be
`a shirt proclaiming the shahada, or a shirt
`announcing “Christ is risen!” It might be any
`viewpoint imaginable, but whatever it is, it will
`be vulnerable to the rule of the mob. The
`demands of bullies will become school policy.
`
`App. 14 (dissent).
`
`This Court’s review is warranted to preserve the
`free speech rights of students and to prevent the dire
`consequences articulated by Judge O’Scannlain.
`
`A. The Ninth Circuit’s Decision Conflicts with
`Tinker.
`
`In Tinker v. Des Moines Independent Community
`School District, 393 U.S. 503 (1969), this Court held
`that school officials violated the First Amendment by
`suspending students for wearing black armbands in
`protest of the Vietnam War. Id. at 508, 513–14. In
`reaching this conclusion, the Court famously stated
`that students do not “shed their constitutional rights to
`freedom of speech or expression at the schoolhouse
`gate.” Id. at 506.
`
`banning Petitioners’
`Respondents’ decision
`American flag clothing to avoid unrealized and
`unarticulated student unrest ratifies a policy
`inconsistent with Tinker. Indeed, Tinker does not
`countenance Respondents’ restriction on Petitioners’
`
`

`
` 6
`
`silent, passive expression of opinion—rather, it forbids
`it. That is, Tinker does not authorize school officials to
`restrict student speech apart from its current or
`forecasted disruption due to the time, place or manner
`of the student’s speech activity. See id. at 513 (“But
`conduct by the student, in class or out of it, which for
`any reason—whether it stems from time, place, or type
`of behavior—materially disrupts classwork or involves
`substantial disorder or invasion of the rights of others
`is, of course, not immunized by the constitutional
`guarantee of freedom of speech.”) (emphasis added).
`
`In Tinker, the Court described the “problem posed
`by the present case” as follows: “The school officials
`banned and sought to punish petitioners for a silent,
`passive expression of opinion, unaccompanied by any
`disorder or disturbance on the part of petitioners.” Id.
`at 508 (emphasis added). As this Court noted, the
`“mere desire
`to avoid
`the discomfort and
`unpleasantness that always accompany an unpopular
`viewpoint” is not an acceptable justification for
`censorship. Consequently, a restriction on student
`speech is prohibited by the First Amendment “if it
`could not be justified by a showing that the students’
`activities would materially and substantially disrupt
`the work and discipline of the school.” Id. at 513
`(emphasis added). As the Court found, school officials
`had no reason “to anticipate that the wearing of the
`armbands would substantially interfere with the work
`of the school or impinge upon the rights of other
`students”—despite their “urgent wish to avoid the
`controversy which might result from the expression,
`even by the silent symbol of armbands.” Id. at 510
`(emphasis added).
`
`

`
` 7
`
`Like the armbands worn in Tinker, the Constitution
`does not permit public school officials to deny
`Petitioners’ form of expression—the peaceful, passive,
`and silent expression of a pro-America message
`through the wearing of a shirt depicting the American
`flag. Tinker, 393 U.S. at 505-06 (holding that the
`wearing of armbands by students was “closely akin to
`‘pure speech,’ which, we have repeatedly held, is
`entitled to comprehensive protection under the First
`Amendment”).
`
`There is no principled way of distinguishing
`Petitioners’ wearing of their American flag shirts to
`school on Cinco de Mayo from the Tinker students’
`wearing of black armbands to protest the Vietnam
`War—a provocative act during a time of deep social
`unrest in a divided nation:
`
`These petitioners merely went about their
`ordained rounds in school. Their deviation
`consisted only in wearing on their sleeve a band
`of black cloth, not more than two inches wide.
`They wore it to exhibit their disapproval of the
`Vietnam hostilities and their advocacy of a
`truce, to make their views known, and, by their
`example, to influence others to adopt them.
`They neither interrupted school activities nor
`sought to intrude in the school affairs or the
`lives of others. They caused discussion outside
`of the classrooms, but no interference with work
`and no disorder. In the circumstances, our
`Constitution does not permit officials of the
`State to deny their form of expression.
`
`Tinker, 393 U.S. at 514 (emphasis added).
`
`

`
` 8
`
`Although the majority opinion in Tinker did not
`emphasize nor rely upon any disturbances caused by
`students reacting to the armbands, Justice Black’s
`dissent identified evidence in the record revealing that
`“the armbands caused comments, warnings by other
`students . . . and a warning by an older football player
`that other, non-protesting students had better let them
`alone. There [was] also evidence that a teacher of
`mathematics had his lesson period practically ‘wrecked’
`chiefly by disputes with Mary Beth Tinker, who wore
`her armband for her ‘demonstration.’” Id. at 517
`(Black, J., dissenting). And despite this evidence of
`disruption caused by others, the Court protected the
`students’ right to engage in this form of expression on
`a public school campus, thereby rejecting any heckler’s
`attempt to veto the expression of Ms. Tinker’s and
`others’ unpopular opinion. See infra part. I.B.; App. 10
`(dissent) (noting that “Tinker went out of its way to
`reaffirm the heckler’s veto doctrine”).
`
`Here, there is no dispute that the content of
`Petitioners’ speech and the viewpoint expressed by it
`are protected by the First Amendment. And the
`manner in which Petitioners engaged in their speech
`was nothing short of silent and peaceful (i.e., it was not
`materially or substantially disruptive). As this Court
`noted in Tinker, “[T]he wearing of armbands in the
`circumstances of this case was entirely divorced from
`actually or potentially disruptive conduct by those
`participating in it.” Tinker, 393 U.S. at 505 (emphasis
`added).
`
`The principles outlined in Tinker embody the
`longstanding recognition that our public schools serve
`as a unifying social force and must, therefore, provide
`
`

`
` 9
`
`the basic tools for shaping democratic values. See, e.g.,
`McCollum v. Bd. of Educ., 333 U.S. 203, 216, 231
`(1948) (Frankfurter, J.) (describing the American
`public school as “the most powerful agency for
`promoting cohesion among a heterogeneous democratic
`people” and “the symbol of our democracy and the most
`pervasive means for promoting our common destiny”).
`And because our schools “are educating the young for
`citizenship,” the obligation to ensure the “scrupulous
`protection of constitutional freedoms of the individual”
`is mandatory “if we are not to strangle the free mind at
`its source and teach youth to discount important
`principles of our government as mere platitudes.” W.V.
`State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).
`
`Indeed, it is far better in our civilized society to
`teach students about the First Amendment and why we
`tolerate divergent views than to suppress speech.
`Thus, the better and proper response is for school
`officials to educate the audience rather than silence the
`speaker. By restricting Petitioners’ speech,
`Respondents
`failed to
`fulfill this
`fundamental
`obligation of our government-operated schools and
`violated the First Amendment in the process.
`
`B. The Ninth Circuit’s Decision Impermissibly
`Incorporates a Heckler’s Veto into the First
`Amendment.
`
`One of the “bedrock First Amendment principles”
`that the Ninth Circuit’s decision disregards is that
`government officials may not “restrict speech based on
`listener reaction,” even if the listeners are minors on a
`public school campus. See Ctr. for Bio-Ethical Reform,
`Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 790 (9th
`Cir. 2008) (“There is . . . no precedent for a ‘minors’
`
`

`
` 10
`
`exception to the prohibition on banning speech because
`of listeners’ reaction to its content.”). This is known in
`First Amendment parlance as a “heckler’s veto.” Id. at
`788 n.4; Lewis v. Wilson, 253 F.3d 1077, 1082 (8th Cir.
`2001) (“The [F]irst [A]mendment knows no heckler’s
`veto.”).
`
`In Tinker, this Court “went out of its way to
`reaffirm the heckler’s veto doctrine; the principle that
`‘the government cannot silence messages simply
`because they cause discomfort, fear, or even anger.’”
`App. 10 (dissent) (quoting Ctr. for Bio–Ethical Reform,
`Inc., 533 F.3d at 788 (citing Tinker, 393 U.S. at 508)).
`The Ninth Circuit did precisely what Tinker cautions
`against by permitting school officials to punish
`students engaged in a passive expression of opinion to
`pacify, and indeed reward, those students opposed to
`the message.
`
`Petitioners did nothing more than engage in a
`silent, passive expression of a pro-America viewpoint
`on May 5, 2010, and any perceived negative response,
`reaction, or potential disruption was from the
`“hecklers” who opposed this viewpoint. See Forsyth
`Cnty. v. Nationalist Movement, 505 U.S. 123, 134-35
`(1992) (holding that speech cannot be “punished or
`banned, simply because it might offend a hostile mob”);
`Ctr. for Bio-Ethical Reform, Inc., 533 F.3d at 789
`(“Whether prospectively, as in Forsyth County, or
`retrospectively, as
`in the case before us, the
`government may not give weight to the audience’s
`negative reaction.”).
`
`As Judge O’Scannlain noted, “[t]he heckler’s veto
`doctrine is one of the oldest and most venerable in First
`Amendment
`jurisprudence.”
` App. 12 (dissent).
`
`

`
` 11
`
`Affirming the heckler’s veto doctrine in the public
`school context, Tinker explains:
`
`fear or
`[I]n our system, undifferentiated
`apprehension of disturbance is not enough to
`overcome the right to freedom of expression.
`Any departure from absolute regimentation may
`cause trouble. Any variation from the majority’s
`opinion may inspire fear. Any word spoken, in
`class, in the lunchroom, or on the campus, that
`deviates from the views of another person may
`start an argument or cause a disturbance. But
`our Constitution says we must take this risk. . . .
`
`Tinker, 393 U.S. at 508.
`
`As Judge O’Scannlain emphasized, and the majority
`panel ignored, exceptions to the heckler’s veto doctrine
`have only been applied to “well-defined and narrowly
`limited classes of speech, the prevention and
`punishment of which have never been thought to raise
`any Constitutional problem.” App. 12-13 (dissent)
`(quoting Chaplinsky v. New Hampshire, 315 U.S. 568,
`571-72) (1942)); see also United States v. Alvarez, 132
`S. Ct. 2537, 2543-44 (2012) (listing categories of speech
`in which content-based restrictions are generally
`permitted). These limited categories include “fighting
`words”—“those which by their very utterance inflict
`injury or tend to incite an immediate breach of the
`peace,” Chaplinsky, 315 U.S. at 572; speech that is
`directed to inciting or producing imminent lawless
`action and is likely to incite or produce such action,
`Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); and
`true threats, Virginia v. Black, 538 U.S. 343, 358–60
`(2003).
`
`

`
` 12
`
`“[G]iven the central importance of the heckler’s veto
`doctrine to First Amendment jurisprudence,” Judge
`O’Scannlain notes, it “should come as no surprise” that
`Tinker “stands as a dramatic reaffirmation” of it. App.
`10-11 (dissent); see also App. 10 (dissent) (“Tinker went
`out of its way to reaffirm the heckler’s veto doctrine
`. . . .”).
`
`In the final analysis, the Ninth Circuit’s decision
`affirms a dangerous lesson by rewarding students who
`resort to disruption rather than reason as the default
`means of resolving disputes. See App. 13-14 (dissent)
`(“Live Oak’s reaction to the possible violence against
`the student speakers, and the panel’s blessing of that
`reaction, sends a clear message to public school
`students: by threatening violence against those with
`whom you disagree, you can enlist the power of the
`State to silence them. This perverse incentive created
`by the panel’s opinion is precisely what the heckler’s
`veto doctrine seeks to avoid.”). Because school officials
`perceived that those who oppose the message conveyed
`by Petitioners’ American flag clothing would adversely
`react to the message, Petitioners were not permitted to
`speak. This not only creates perverse incentives for
`student hecklers, it effectively turns the First
`Amendment on its head. Simon & Schuster, Inc. v.
`Members of N.Y. State Crime Victims Bd., 502 U.S.
`105, 118 (1991) (“[I]f it is the speaker’s opinion that
`gives offense, that consequence is a reason for
`according it constitutional protection.”) (citations
`omitted); Texas v. Johnson, 491 U.S. 397, 414 (1989)
`(“If there is a bedrock principle underlying the First
`Amendment, it is that the government may not
`prohibit the expression of an idea simply because
`society finds the idea itself offensive or disagreeable.”).
`
`

`
` 13
`
`C. The Ninth Circuit’s Decision Creates a
`Circuit Split.
`
`contravening Tinker and
`to
`In addition
`impermissibly incorporating a heckler’s veto into the
`First Amendment, the Ninth Circuit’s decision creates
`a split with the Seventh and Eleventh Circuits, both of
`which have held, consistent with Tinker, that school
`officials cannot suppress student speech based on the
`negative reaction of its audience.
`
`In Zamecnik v. Indian Prairie School District No.
`204, 636 F.3d 874, 875 (7th Cir. 2011), a student wore
`a shirt to school on the Day of Silence bearing the
`slogan, “Be Happy, Not Gay.” The school sought to
`prohibit the student from wearing the shirt based, in
`part, on “incidents of harassment of plaintiff
`Zamecnik.” Id. at 879. The Seventh Circuit squarely
`rejected that rationale as “barred by the doctrine . . . of
`the ‘heckler’s veto.’” Id. In Zamecnik, the Seventh
`Circuit made clear that Tinker “endorse[s] the doctrine
`of the heckler’s veto” and described the rationale
`behind that doctrine:
`
`Statements that while not fighting words are
`met by violence or threats or other unprivileged
`retaliatory conduct by persons offended by them
`cannot lawfully be suppressed because of that
`conduct. Otherwise free speech could be stifled
`by the speaker’s opponents’ mounting a riot,
`even though, because the speech had contained
`no fighting words, no reasonable person would
`have been moved to a riotous response. So the
`fact that homosexual students and their
`sympathizers harassed Zamecnik because of
`
`

`
` 14
`
`their disapproval of her message is not a
`permissible ground for banning it.
`
`Id. Indeed, in the absence of evidence indicating a true
`threat, speculation that a message might provoke
`violence constitutes “too thin a reed on which to hang
`a prohibition of the exercise of a student’s speech.” Id.
`at 877. The court observed:
`
`As one would expect in a high school of more
`than 4,000 students, there had been incidents of
`harassment of homosexual students. But we
`thought it speculative that allowing the plaintiff
`to wear a T-shirt that said “Be Happy, Not Gay”
`would have even a slight tendency to provoke
`such incidents, or for that matter to poison the
`educational atmosphere.
`
`Id. The court affirmed the grant of summary judgment
`to Zamecnik. Id. at 882.
`
`Consistent with the Seventh Circuit, the Eleventh
`Circuit has held that school officials cannot suppress a
`student’s speech based on the listener’s (or viewer’s)
`reaction. In Holloman ex rel. Holloman v. Harland,
`370 F.3d 1252, 1259 (11th Cir. 2004), the court
`affirmed the First Amendment right of a student to
`silently hold up a fist as other students recited the
`Pledge of Allegiance.
` School officials
`justified
`punishing the student based on a “concern that his
`behavior would lead to further disruptions by other
`students.” Id. at 1274. Applying Tinker, the court
`rejected the school officials’ asserted justification,
`which was based on a heckler’s veto, reasoning:
`
`Allowing a school to curtail a student’s freedom
`of expression based on such factors turns reason
`
`

`
` 15
`
`on its head. If certain bullies are likely to act
`violently when a student wears long hair, it is
`unquestionably easy for a principal to preclude
`the outburst by preventing the student from
`wearing long hair. To do so, however, is to
`sacrifice freedom upon the alter [sic] of order,
`and allow the scope of our liberty to be dictated
`by the inclinations of the unlawful mob.
`
`Id. at 1275.
`
`While the Ninth Circuit eschews any responsibility
`on the part of school officials to protect the speech
`rights of students, Holloman, in contrast, takes a
`different and more principled approach:
`
`While the same constitutional standards do not
`always apply in public schools as on public
`streets, we cannot afford students
`less
`constitutional protection simply because their
`peers might illegally express disagreement
`through violence instead of reason. If the
`people, acting through a legislative assembly,
`may not proscribe certain speech, neither may
`they do so acting individually as criminals.
`Principals have the duty to maintain order in
`public schools, but they may not do so while
`turning a blind eye to basic notions of right and
`wrong.
`
`Id. at 1276.
`
`In this case, “[t]he panel claims that the source of
`the threatened violence at Live Oak is irrelevant:
`apparently requiring school officials to stop the source
`of a threat is too burdensome when a more ‘readily-
`available’ solution is at hand, . . . namely, silencing the
`
`

`
` 16
`
`target of the threat. Thus the panel finds it of no
`consequence that the students exercising their free
`speech rights did so peacefully, that their expression
`took the passive form of wearing shirts, or that there is
`no allegation that they threatened other students with
`violence.” App. 8-9 (dissent).
`
`By curtailing Petitioners’ freedom of expression and
`turning a blind eye to basic notions of right and wrong,
`the Ninth Circuit’s decision marks a dramatic
`departure from Tinker and the decisions of other
`United States courts of appeals, thereby creating a
`circuit split that should be resolved by this Court.4
`
`II. The Ninth Circuit’s Reliance on Confederate
`Flag Cases to Justify Banning the American
`Flag Is Wholly Misplaced.
`
`The Ninth Circuit’s approach goes so far as to
`derogate America’s national symbol of unity by
`essentially analogizing the American flag to the
`
`4 It should be noted that protecting the student speech and the
`constitutional principles at issue in this case poses no challenge to
`“the traditional authority of teachers to maintain order in public
`schools” nor requires them “to surrender control of the American
`public school system to public school students.” Morse v.
`Frederick, 551 U.S. 393, 421 (2007) (Thomas, J., concurring)
`(internal quotations and citations omitted). Students at Live Oak
`High School were permitted to wear message-bearing shirts to
`school, including shirts bearing American flag images on days
`other than Cinco de Mayo. See, e.g., App. 23, 28. Thus, a ruling in
`favor of protecting Petitioners’ speech would not prevent a school
`district

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket