`
`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