`In the
`Supreme Court of the United States
`
`
`
`
`
`
`
`
`
`JOHN DARIANO, et al,
`
`
`
` Petitioners,
`v.
`MORGAN HILL UNIFIED SCHOOL DISTRICT,
`et al,
`
`
`
`
`
`
` Respondents.
`
`
`
`
`
`
`
`
`
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`
`
`AMICUS CURIAE BRIEF OF CENTER FOR
`CONSTITUTIONAL JURISPRUDENCE IN
`SUPPORT OF PETITIONERS
`
`
`
`
`
`
`
`SETH L. COOPER
`JOHN C. EASTMAN
`Newton Kight LLP
` Counsel of Record
`P.O. Box 79
`ANTHONY T. CASO
`Everett, WA 98206
`Center For Constitutional
`Jurisprudence
`c/o Chapman University
` Dale E. Fowler School
`One University Drive
`Orange, CA 92866
`(714) 628-2587
`jeastman@chapman.edu
`
`
`
`
`
`
`
`Counsel for Amicus Curiae Center
`for Constitutional Jurisprudence
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES ....................................... ii
`IDENTITY AND INTEREST ...................................... 1
`OF AMICUS CURIAE ................................................. 1
`SUMMARY OF ARGUMENT ..................................... 2
`REASONS TO GRANT REVIEW ............................... 3
`I. The Court of Appeals’ Ruling Misconstrues
`Supreme Court Precedent and Erroneously
`Seeks to Read Into It an Exception to the
`Heckler’s Veto Doctrine. ...................................... 3
`II. Review Is Necessary To Clarify that Public
`Display or Expression of the American Flag
`Is Protected Speech and Cannot Be
`Censored By Erroneously Analogizing The
`Nation’s Symbol of Union, Liberty, and
`Equality to the Confederate Flag. ....................... 7
`CONCLUSION .......................................................... 16
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Cases
`Bethel Sch. Dist. No. 403 v. Fraser,
`478 U.S. 675 (1986) .................................................. 3
`Cox v. Louisiana,
`379 U.S. 536 (1965) .................................................. 6
`Dariano v. Morgan Hill Unified Sch. Dist.,
`767 F.3d 764 (9th Cir.2014) .......................... passim
`Dixon v. Coburg Dairy, Inc.,
`369 F.3d 811 (4th Cir. 2004) ................................. 14
`Elk Grove Unified School Dist. v. Newdow,
`542 U.S. 1 (2004) ...................................... 1, 9, 12, 15
`Halter v. Nebraska,
`205 U.S. 34 (1907) .............................................. 9, 10
`McCullen v. Coakley,
`134 S.Ct. 2518 (2014) ............................................... 1
`Minersville School Dist. v. Gobitis,
`310 U.S. 586 (1940) .................................................. 9
`Scott v. School Board of Alachua County,
`324 F.3d 1236 (11th Cir. 2003).............................. 15
`Susan B. Anthony List v. Driehaus,
`134 S.Ct. 2334 (2014) .............................................. 1
`Terminiello v. Chicago,
`337 U.S. 1 (1949) .................................................. 5, 6
`Texas v Johnson,
`491 U.S. 397 (1989) .................................. 8, 9, 11, 12
`Texas v. White,
`7 U.S. (Wall.) 700 (1869) ....................................... 11
`
`
`
`iii
`
`Tinker v. Des Moines Independent Community Sch.
`Dist.,
`393 U.S. 503 (1969). ....................................... passim
`U.S. v. Blanding,
`250 F.3d 858 (4th Cir. 2001) ................................. 14
`U.S. v. Eichman,
`496 U.S. 310 (1990) ................................................ 15
`West Virginia State Bd. of Educ. v. Barnette,
`319 U.S. 624 (1943) .................................................. 9
`Statutes
`4 U.S.C. § 1 .................................................................. 8
`4 U.S.C. § 2 .................................................................. 8
`4 U.S.C. § 4 ................................................................ 15
`Other Authorities
`Articles of Association (1774) .................................... 10
`Articles of Confederation (1778) ............................... 10
`Beecher, Henry Ward, Oration of the Rev. Henry
`Ward Beecher, on the Raising of “The Old Flag” at
`Sumter, April 14, 1865, ORATION AT THE RAISING
`OF “THE OLD FLAG” AT SUMTER; AND SERMON ON
`THE DEATH OF ABRAHAM LINCOLN, PRESIDENT OF
`THE UNITED STATES (1865) ..................................... 12
`Declaration of Independence (1776) ............... 8, 10, 13
`Executive Order No. 10834 (1959) .............................. 8
`Jaffa, Harry V., A NEW BIRTH OF FREEDOM: ABRAHAM
`LINCOLN AND THE COMING OF THE CIVIL WAR (2000)
` ................................................................................ 13
`
`
`
`iv
`
`Lincoln, Abraham, First Inaugural Address (1861),
`THE COLLECTED WORKS OF ABRAHAM LINCOLN (Roy
`P. Basler, ed.), VOL. IV (1953) ............................... 10
`Lincoln, Abraham, Gettysburg Address (1863), THE
`COLLECTED WORKS OF ABRAHAM LINCOLN (Roy P.
`Basler, ed.), VOL. VII (1953) .................................. 11
`Lincoln, Abraham, Letter to Ephraim D. and Phoebe
`Ellsworth (May 25, 1861), THE COLLECTED WORKS
`OF ABRAHAM LINCOLN (Roy P. Basler, ed.), VOL. IV
`(1953) ...................................................................... 13
`Stephens, Alexander H., Speech Delivered on the 21st
`March, 1861, in Savannah, Known as “the Corner
`Stone Speech,” Reported in the Savannah
`Republican, ALEXANDER H. STEPHENS IN PUBLIC
`AND PRIVATE WITH LETTERS AND SPEECHES (1866).
` ................................................................................ 14
`U.S. CONST, Amend. XIII ........................................ 11
`U.S. Constitution, Preamble ..................................... 10
`Young, John Russell, AROUND THE WORLD WITH
`GENERAL GRANT (1879) .......................................... 11
`Rules
`Sup. Ct. R. 37.32(a) ..................................................... 1
`Sup. Ct. R. 37.6 ............................................................ 1
`
`
`
`
`
`
`IDENTITY AND INTEREST
`OF AMICUS CURIAE
`Center
`for
`Constitutional
`Amicus,
`Jurisprudence1 was established in 1999 as the public
`interest law arm of the Claremont Institute, the
`mission of which is to restore and uphold the
`principles of the American Founding, including
`protecting the theory underlying our republic that
`we are endowed with unalienable rights and the
`function of government is to protect those rights.
`In addition to providing counsel for parties at all
`levels of state and federal courts, the Center has
`participated as amicus curiae before this Court in
`several cases of constitutional significance. Most
`recently, the Center has participated as amicus
`curiae in cases involving freedom of speech in
`McCullen v. Coakley, 134 S. Ct. 2518 (2014) and
`Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334
`(2014). The Center has also participated as amicus
`curiae in a prior case involving the meaning of the
`American flag and the republic for which it stands,
`Elk Grove Unified School District v. Newdow, 542
`U.S. 1 (2004).
`
`
`1 Pursuant to this Court’s Rule 37.2(a), all parties have
`consented to the filing of this brief. Consent of Petitioner and of
`Respondent has been lodged with the Clerk. All parties waived
`any objections to late notice of the filing of this brief.
` Pursuant to Rule 37.6, amicus curiae affirms that no
`counsel for any party authored this brief in any manner, and no
`counsel or party made a monetary contribution in order to fund
`the preparation or submission of this brief. No person other
`than Amicus Curiae, its members, or its counsel made a
`monetary contribution to the preparation or submission of this
`brief.
`
`
`
`
`
`2
`
`
`SUMMARY OF ARGUMENT
`rejects
`First Amendment
`jurisprudence
`government suppression of speech or expressive
`conduct merely because the message finds disfavor
`with a restive audience. Silent passive display of the
`flag of the United States of America – a national
`symbol of Union, liberty, and equality – is an
`exemplary form of expressive conduct and within the
`scope of constitutional free speech guarantees.
`In Dariano v. Morgan Hill Unified Sch. Dist.,
`767 F.3d 764 (9th Cir.2014), the Court of Appeals
`stumbled badly in its consideration of free speech
`principles. The ruling erodes the heckler’s veto
`doctrine. It effectively empowers schools to silence
`speech or expression by students where others create
`or threaten to create a hostile environment in
`response. The Court of Appeals misconstrued the
`standard for student speech restrictions in Tinker v.
`Des Moines Independent Community Sch. Dist., 393
`U.S. 503 (1969). The errors of its ruling were
`compounded by its highly dubious invocation of cases
`involving school suppression of Confederate flag
`displays as a basis for school suppression of
`American flag displays. But the two flags have
`distinct meanings with divergent histories. Even a
`cursory consideration of American Civil War history
`reveals this.
`This Court should grant the petition for writ of
`certiorari in order to reaffirm the First Amendment’s
`heckler’s veto doctrine. This case offers the Court an
`opportunity to dispel the backward idea that the
`American
`flag can be restricted by mistaken
`
`
`
`3
`
`analogies to the meaning of the Confederate flag and
`its effect on audiences.
`REASONS TO GRANT REVIEW
`I. The Court of Appeals’ Ruling Misconstrues
`Supreme Court Precedent and Erroneously
`Seeks to Read Into It an Exception to the
`Heckler’s Veto Doctrine.
`The Court of Appeals’ decision below stumbled
`badly in its consideration of free speech principles. It
`misconstrued this Court’s jurisprudential standard
`for restricting student speech set forth in Tinker, 393
`U.S. 503. At the expense of student free speech
`rights, the Court of Appeals effectively created a
`schoolyard exception to the heckler’s veto doctrine.
`This Court’s First Amendment jurisprudence
`makes clear that students do not “shed their
`constitutional rights to
`freedom of speech or
`expression at the schoolhouse gate.” Tinker, 393 U.S.
`at 506. To be sure, “the constitutional rights of
`students in public school are not automatically
`coextensive with the rights of adults in other
`settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478
`U.S. 675, 682 (1986). The rights of students must be
`considered “in light of the special characteristics of
`the school environment." Hazelwood Sch. Dist. v.
`Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Tinker,
`393 U.S. at 506). But the Ninth Circuit’s ruling here
`turned the special characteristics of the school envi-
`ronment into a no-speech zone.
`When considering the “special characteristics of
`the school environment,” the Court has instead
`recognized that “schools, as instruments of the state,
`may determine that the essential lessons of civil,
`
`
`
`4
`
`mature conduct cannot be conveyed in a school that
`tolerates lewd, indecent, or offensive speech and
`conduct.” Fraser, at 683. Also, “educators do not
`offend the First Amendment by exercising editorial
`control over the style and content of student speech
`in school-sponsored expressive activities so long as
`their actions are reasonably related to legitimate
`pedagogical concerns.” Hazelwood, 484 U.S., at 273.
`But where neither of the circumstances identified in
`Fraser or Hazelwood obtain, for all other student
`speech, restriction is permitted only when the school
`reasonably
`believes
`that
`the
`speech will
`substantially
`and materially
`interfere with
`schoolwork or discipline. See Tinker, 393 U.S., at
`513.
`Neither of the qualifications identified in Fraser
`or Hazelwood obtain in this case. Therefore Tinker
`applies.
`Unfortunately, the Court of Appeals erroneously
`deemed Tinker an affirmation of the power of school
`officials to restrict free speech rights whenever third
`parties threaten to cause disruption in response. It
`regarded
`restriction
`of
`student
`speech and
`expression as a “readily-available” and therefore less
`burdensome step for school officials to take in
`protecting
`students
`compared
`to
`“precisely
`identify[ing] the source of a violent threat.” See Dar-
`iano, 767 F.3d, at 778.
`By elevating concerns about convenience to
`school officials and subordinating speech interests of
`students, the Court of Appeals disregarded Tinker’s
`recognition that:
`
`
`
`5
`
`Any word spoken, in class, in the lunch-
`room, 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,
`Terminiello v. Chicago, 337 U.S. 1 (1949);
`and our history says that it is this sort of
`hazardous freedom — this kind of openness
`— that is the basis of our national strength
`and of the independence and vigor of Amer-
`icans who grow up and live in this relative-
`ly permissive, often disputatious, society.
`Tinker, 393 U.S. at 508-509. A critical rationale be-
`hind the heckler’s veto doctrine is the importance of
`ensuring that such “hazardous freedom” and “open-
`ness” be preserved.
`But the Court of Appeals’ decision did more
`than merely subordinate student rights of speech
`and
`expression
`relative
`to
`school
`officials’
`convenience. It deemed irrelevant whether the
`sources of the “substantial disruption” to the school’s
`mission originates from speech or expression of the
`student or from another student who threatens
`harm. In other words, the Court of Appeals excluded
`from consideration the rights of the student speaker
`and the wrongs by other students. As the Court of
`Appeals put it, “[i]n the school context, the crucial
`distinction is the nature of the speech, not the source
`of it.” Dariano, 767 F.3d, at 778. The record in this
`case undisputedly shows that the school suppressed
`the speech of students because of what other
`students might in response. The decision thereby
`transformed Tinker into an exception to the heckler’s
`veto doctrine.
`
`
`
`6
`
`As Judge O’Scannlain aptly put it in his dissent
`from denial of rehearing en banc, “far
`from
`abandoning the heckler’s veto doctrine in public
`schools, Tinker stands as a dramatic reaffirmation of
`it.” Dariano, 767 F.3d, at 770 (O’Scannlain, J.,
`dissenting). Indeed, “[t]he heckler’s veto doctrine is
`one of the oldest and most venerable in the First
`Amendment
`jurisprudence.”
`Id.
`at
`769-770
`(O’Scannlain, J., dissenting) (citing Terminiello, 337
`U.S. at 5). This Court’s decisions are not indifferent
`or neutral when it comes to the source of potential
`harm. Rather, the heckler’s veto doctrine emphasizes
`protections for the right to speak or express
`viewpoints free from restrictions meant to placate or
`reward would-be hostiles or mobs. See, e.g., Cox v.
`Louisiana, 379 U.S. 536, 550 (1965) (“constitutional
`rights may not be denied simply because of hostility
`to their assertion or exercise.”)
`Moreover, by reading
`into Tinker a new
`exception to the heckler’s veto doctrine, the Court of
`Appeals “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.” Dariano, 767 F.3d at 770
`(O’Scannlain, dissenting). The decision’s rejection of
`the importance in distinguishing the source of
`disruption effectively dismissed another critical
`underlying rationale behind the heckler’s veto:
`prohibiting government suppression of speech or
`expressive conduct merely because the message finds
`disfavor with a restive audience. Thus, the Ninth
`Circuit’s decision adopted an exception
`that
`swallowed the rule in the school context.
`
`
`
`7
`
`This Court’s review is therefore necessary to correct
`the Court of Appeals’ misconstruing of Tinker and its
`mistaken fashioning of an exception to the heckler’s
`veto doctrine.
`II.
`Review Is Necessary To Clarify that
`Public Display or Expression of the
`American Flag Is Protected Speech and
`Cannot Be Censored By Erroneously
`Analogizing The Nation’s Symbol of
`Union, Liberty, and Equality to the
`Confederate Flag.
`There is nothing more bewildering in the Court
`of Appeals’ ruling than its analogizing the supposed
`“substantial disruption” posed by silent, passive dis-
`play of the American flag to display of the Confeder-
`ate flag. In the Court of Appeals’ words, “the legal
`principle that emerges from the Confederate flag
`cases is that what matters is substantial disruption
`or a reasonable forecast of substantial disruption,
`taking into account either the behavior of a speak-
`er—e.g., causing substantial disruption alongside the
`silent or passive wearing of an emblem—or the reac-
`tions of onlookers.” Dariano, 767 F.3d, at 778. The
`prior section’s overview of the heckler’s veto doctrine
`and Tinker supply reason enough for rejecting the
`Court of Appeals’ so-called “legal principle.” But
`more needs be said. Public display or expression of
`the American flag is emphatically protected by the
`First Amendment. The American flag’s meaning as a
`symbol of our nation’s union and cherished ideals
`and its special history are sharply different from the
`meaning and history behind the Confederate flag.
`Display of the flag that stands for freedom cannot be
`
`
`
`8
`
`deemed a substantial disruption for legally suppress-
`ing freedom of speech.
`A. The Meaning and History of the Ameri-
`can Flag Are Rooted in the Most Funda-
`mental Ideals of the Declaration of Inde-
`pendence and the Constitution: Union,
`Liberty, and Equality.
`The American flag is a special symbol of our
`sovereign nation, of its highest ideals, and of its
`basic governing principles. Its thirteen stripes that
`alternate red and white trace back to the original
`“thirteen united States of America” that announced
`their separation from Great Britain to the world
`with the pronouncement: “We hold these truths to be
`self-evident, that all men are created equal, that
`they are endowed by their Creator with certain
`unalienable Rights, that among these are Life,
`Liberty and the pursuit of Happiness.” Declaration
`of Independence (1776); 4 U.S.C. § 1. See also Texas
`v Johnson, 491 U.S. 397, 422 (1989) (Rehnquist, C.J.,
`dissenting) (discussing the Continental Congress’s
`adoption of the Stars and Stripes.) The flag’s fifty
`stars of white in a blue field stand for the states that
`now form our Union. 4 U.S.C. § 1. See also 4 U.S.C. §
`2; Executive Order No. 10834 (1959) (establishing
`the current design of the flag).
` Over the years this Court has had occasion to
`remark on the meaning of the American flag. In the
`words of Justice John Marshall Harlan:
`[T]o every true American the flag is the
`symbol of the nation's power, the emblem of
`freedom in its truest, best sense. It is not
`extravagant to say that to all lovers of the
`
`
`
`9
`
`country it signifies government resting on
`the consent of
`the governed;
`liberty
`regulated by law; the protection of the weak
`against the strong; security against the
`exercise of arbitrary power; and absolute
`safety for free institutions against foreign
`aggression.
`Halter v. Nebraska, 205 U.S. 34, 43 (1907). “The flag
`is the symbol of our national unity, transcending all
`internal differences, however
`large, within the
`framework of the Constitution.” Minersville School
`Dist. v. Gobitis, 310 U.S. 586, 596 (1940) (overruled
`on other grounds by West Virginia State Bd. of Educ.
`v. Barnette, 319 U.S. 624 (1943)). “The very purpose
`of a national flag is to serve as a symbol of our
`country,” Johnson, 491 U.S. at 405, and of its proud
`traditions “of freedom, of equal opportunity, of
`religious tolerance, and of good will for other peoples
`who share our aspirations,” Id., at 437 (Stevens, J.,
`dissenting) (quoted in Elk Grove Unified School Dist.
`v. Newdow, 542 U.S., at 6 (2004). “[T]he flag holds a
`lonely place of honor in an age when absolutes are
`distrusted and simple truths are burdened by
`unneeded apologetics.” Johnson, 491 U.S. at 421
`(1989) (Kennedy, J., concurring).
`B. History of the Civil War Brings the Sym-
`bolic Meaning of the American Flag into
`Sharper Focus.
`The Civil War experience reaffirmed the
`permanency of the Union for which the flag stands.
`Upon taking the oath of office, President Abraham
`Lincoln declared, “in contemplation of universal law,
`and of the Constitution, the Union of these States is
`perpetual.” Abraham Lincoln, First
`Inaugural
`
`
`
`10
`
`Address (1861), THE COLLECTED WORKS OF ABRAHAM
`LINCOLN (Roy P. Basler, ed.), VOL. IV 252 (1953). He
`traced the lineage of the Union from the Articles of
`Association
`(1774) through the Declaration of
`Independence (1776), the Articles of Confederation
`(1778) to the charter of 1787 that was ordained and
`established in order “to form a more perfect union.”
`Id. at 253 (citing U.S. Constitution, Preamble). No
`mere resolution by a state could dissolve their
`connection to the Union. Id. President Lincoln
`acknowledged that the nation was divided: “One
`section of our country believes slavery is right, and
`ought to be extended, while the other believes it is
`wrong, and ought not to be extended.” Id. at 258.
`Yet in contemplation of the nature of the Union,
`Lincoln emphatically rejected that any constitutional
`right for a state to secede from it, declaring: “Plainly,
`the central idea of secession, is the essence of
`anarchy.” Id. at 256.
`“[I]t has often occurred that insults to a flag
`have been the cause of war,” Halter, 205 U.S., at 41.
`To most minds, the lowering of the American flag by
`rebel
`forces at Fort Sumter
`in April, 1861
`constituted the symbolic beginning of the American
`Civil War caused by sectional conflict over slavery.
`In the words of Ulysses S. Grant, “[a]s soon as slav-
`ery fired upon the flag it was felt, we all felt, even
`those who did not object to slaves, that slavery must
`be destroyed.” John Russell Young, AROUND THE
`WORLD WITH GENERAL GRANT 416 (1879).
`Civil War came. “The Union troops marched to
`the sound of ‘Yes We'll Rally Round The Flag Boys,
`We'll Rally Once Again.’” Johnson, 491 U.S., at 423
`(Rehnquist, C.J., dissenting). And “[b]y war's end,
`
`
`
`11
`
`the American flag again flew over ‘an indestructible
`union, composed of indestructible states.’” Id., at 424
`(1989) (Rehnquist, C.J., dissenting) (quoting Texas v.
`White, 7 U.S. (Wall.) 700, 725 (1869)).
`The Union’s victory in war and the ratification
`of the Thirteenth Amendment ultimately destroyed
`slavery. See U.S. CONST, Amend. XIII. Thus, not
`only did the Civil War experience ensure the
`perpetuation of the Union, it brought about a “new
`birth of freedom” for a nation, under God, that had
`been “conceived in liberty and dedicated to the
`proposition that all men are created equal.”
`Abraham Lincoln, Gettysburg Address (1863), THE
`COLLECTED WORKS OF ABRAHAM LINCOLN 23 (Roy P.
`Basler, ed.), VOL. VII (1953).
`At the ceremony where the American flag was
`raised once again at Fort Sumter, it was declared:
`Under this sun, under that bright child of
`the sun, our banner, with the eyes of the
`nation and the world upon us, we repeat
`the syllable of God’s Providence and recite
`the solemn decrees: NO MORE DISUNION! NO
`MORE SECESSION! NO MORE SLAVERY!
`Henry Ward Beecher, Oration of the Rev. Henry
`Ward Beecher, on the Raising of “The Old Flag” at
`Sumter, April 14, 1865, ORATION AT THE RAISING OF
`“THE OLD FLAG” AT SUMTER; AND SERMON ON THE
`DEATH OF ABRAHAM LINCOLN, PRESIDENT OF THE
`UNITED STATES 19 (1865). With the Union preserved
`and the blight of slavery removed, the American flag
`would even more clearly stand for the nation’s found-
`ing ideals of Union, liberty, and equality. See New-
`dow, 542 U.S. at 6 n1 (discussing the 1892 proposal
`
`
`
`12
`
`for the Pledge of Allegiance and observing, “the
`phrase ‘one Nation indivisible’ had special mean-
`ing because the question whether a State could se-
`cede from the Union had been intensely debated
`and was unresolved prior to the Civil War.”)
`C. The History of the Civil War Brings the
`Symbolic Meaning of the American Flag
`into Sharper Contrast with the Confed-
`erate Flag.
`The Southern States that formed the so-called
`“Confederate States of America” rejected the Union’s
`claim to being perpetual. The Confederacy was
`therefore premised on the idea of secession. See, e.g.,
`White, 74 U.S., at 722-724 (describing process by
`which the State of Texas seceded from the Union and
`the Confederacy was formed).
`formalize their
` “The Southern States, to
`separation from the Union, adopted the ‘Stars and
`Bars’ of the Confederacy.” Johnson, 491 U.S. at 424
`(Rehnquist, C.J., dissenting). The first Union officer
`casualty of the Civil War was Col. Elmer Ellsworth,
`shot after removing the Confederate flag atop a
`building in Alexandria, Virginia, where it had been
`visible to eyes in Washington, D.C. See Abraham
`Lincoln, Letter to Ephraim D. and Phoebe Ellsworth
`(May 25, 1861), THE COLLECTED WORKS OF ABRAHAM
`LINCOLN (Roy P. Basler, ed.), VOL. IV 333 (1953). The
`loss of life that took place at the Battle of Gettysburg
`later furnished the occasion for President Lincoln’s
`famous Address.
`“The Gettysburg Address
`presupposes the truth of the great proposition set
`forth originally in the Declaration of Independence.”
`Harry V. Jaffa, A NEW BIRTH OF FREEDOM: ABRAHAM
`
`
`
`13
`
`LINCOLN AND THE COMING OF THE CIVIL WAR 80
`(2000).
`liberty and
`The Confederacy’s rejection of
`equality, on the other hand, was epitomized in the
`so-called “Corner Stone Speech” of Confederate Vice
`President Alexander H. Stephens.
`“Stephens’s
`speech, more than any other is the Gettysburg
`Address of the Confederate South.” Jaffa, A NEW
`BIRTH OF FREEDOM 216. Stephens’s speech set out
`the ideological basis for the Confederacy, and for
`which the Confederate flag stood:
`Our new government is founded upon ex-
`actly the opposite idea [to the idea of equal-
`ity in the Declaration of Independence]; its
`foundations are laid, its corner stone rests
`upon the great truth that the negro is not
`equal to the white man. That slavery—
`subordination to the superior race, is his
`natural and normal condition.
`Alexander H. Stephens, Speech Delivered on the 21st
`March, 1861, in Savannah, Known as “the Corner
`Stone Speech,” Reported in the Savannah Republi-
`can, ALEXANDER H. STEPHENS IN PUBLIC AND PRIVATE
`WITH LETTERS AND SPEECHES 721 (1866).
`D. Concerns about the Confederate Flag’s
`Meaning and History or Reactions to its
`Display Provide No Basis for Censoring
`Display of the American Flag.
`In light of the history of the Confederacy:
`It is the sincerely held view of many Ameri-
`cans, of all races, that the confederate flag
`is a symbol of racial separation and oppres-
`
`
`
`14
`
`sion. And, unfortunately, as uncomfortable
`as it is to admit, there are still those today
`who affirm allegiance to the confederate
`flag precisely because, for them, that flag is
`identified with racial separation. Because
`there are citizens who not only continue to
`hold separatist views, but who revere the
`confederate flag precisely for its symbolism
`of those views, it is not an irrational infer-
`ence that one who displays the confederate
`flag may harbor racial bias against African-
`Americans.
`U.S. v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001).
`See also Dixon v. Coburg Dairy, Inc., 369 F.3d 811,
`823-825 (4th Cir. 2004) (Gregory, J., concurring in
`the judgment) (describing “Lost Cause” advocacy and
`racial tensions tied to the Confederate flag). Of
`course, some other Americans contend that the Con-
`federate flag may be seen as a symbol of southern
`heritage and of decentralized government, see Scott
`v. School Board of Alachua County, 324 F.3d 1236,
`1248-1249 (11th Cir. 2003), leading at least one
`court to conclude that both viewpoints are correct.
`Id. at 1249. In grappling with the meaning and
`strong feelings of reaction to the Confederate flag, a
`number of lower courts have upheld school re-
`strictions of its display by students. Dariano, 767
`F.3d, at 772 n8 (O’Scannlain, J., dissenting) (listing
`cases).
`The point here is not to settle whether it consti-
`tutes vulgar or offensive speech subject to regulation
`by school officials under Fraser, or to otherwise set-
`tle the degree of protection First Amendment protec-
`tion students might have in displaying it. Rather,
`
`
`
`15
`
`the point is that the Confederate flag’s own meaning
`and history “certainly provides no support for ban-
`ning displays of the American flag.” Dariano, 767
`F.3d, at 773. (O’Scannlain, J., dissenting).
`More than that, this Court has previously af-
`firmed that display of the flag serves important pub-
`lic ends. “We concede that the Government has a le-
`gitimate interest in preserving the flag's function as
`an ‘incident of sovereignty.’” U.S. v. Eichman, 496
`U.S. 310, 316 n6 (1990). Those public ends are par-
`ticularly relevant in schools, as “the Pledge of Alle-
`giance evolved as a common public acknowledge-
`ment of the ideals that our flag symbolizes. Its reci-
`tation is a patriotic exercise designed to foster na-
`tional unity and pride in those principles.” Newdow,
`542 U.S., at 6; 4 U.S.C. § 4.
`As this Court acknowledged in Fraser.
`The process of educating our youth for citi-
`zenship in public schools is not confined to
`books, the curriculum, and the civics class;
`schools must teach by example the shared
`values of a civilized social order. Conscious-
`ly or otherwise, teachers—and indeed the
`older students—demonstrate the appropri-
`ate form of civil discourse and political ex-
`pression by their conduct and deportment
`in and out of class.
`478 U.S. at 683. Protecting the ability of students to
`engage in civil discourse and political expression
`through display of the American flag furthers the
`process of educating for citizenship. Banning such
`student expression on account of uncivil conduct by
`those who wish to stifle such expression does not.
`
`
`
`16
`
`The Court should grant the petition and ulti-
`mately dispel the notion that Confederate flag can be
`invoked to censor peaceful display of the American
`flag.
`
`CONCLUSION
`Amicus urges this Court to grant the petition for
`writ of certiorari to vindicate the free speech rights
`of the petitioning students and to reaffirm the First
`Amendment heckler’s veto doctrine. This Court
`should clarify that display of the American flag, our
`nation’s symbol of Union, liberty, and equality, is
`protected speech and cannot be restricted by bad
`analogy to the Confederate flag.
`DATED: January 13, 2015.
`Respectfully submitted,
`JOHN C. EASTMAN
` Counsel of Record
`ANTHONY T. CASO
`Center For Constitutional
`Jurisprudence
`c/o Chapman University
` Dale E. Fowler School
`One University Drive
`Orange, CA 92866
`(714) 628-2587
`jeastman@chapman.edu
`
`Counsel for Amicus Curiae Center
`for Constitutional Jurisprudence
`
`SETH L. COOPER
`Newton Kight LLP
`P.O. Box 79
`Everett, WA 98206