ADF to Supreme Court: Uphold free speech of students in US flag T-shirt case

WASHINGTON – Alliance Defending Freedom attorneys filed a friend-of-the-court brief Tuesday with the U.S. Supreme Court in support of students at Morgan Hill Unified School District in California who were prohibited from wearing American flag T-shirts to express their patriotism.

The U.S. Court of Appeals for the 9th Circuit ruled in an unprecedented decision in September 2014 that public schools can ban the peaceful, protesting speech of students based on the fear of a negative reaction from other students to it. This kind of unconstitutional ban is known in legal circles as a “heckler’s veto.”

“American students shouldn’t be censored just because government officials think someone might be offended,” said ADF Senior Legal Counsel Jeremy Tedesco. “The Supreme Court has made clear repeatedly that the government cannot stifle speech on the basis that someone might consider it controversial. To engage in that kind of censorship is a gross violation of the First Amendment and the civic virtue of robust debate that public schools should embrace and encourage among students.”

Officials at Live Oak High School in Morgan Hill, Calif., prohibited students from silently and peacefully protesting the school’s Cinco de Mayo celebration in May 2010 by wearing American flag T-shirts. School officials required the protesting students to “either turn their shirts inside out or take them off” because they were allegedly concerned for “their safety.” The protest, similar to one held the previous year, did not interfere with classes or cause any other disruptions on campus, although a few students reacted negatively to the shirts.

The ADF brief in Dariano v. Morgan Hill Unified School District echoes Justice Samuel Alito from a 2001 case when Alito was serving on the 3rd Circuit: “The Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.”

As the brief explains, school officials “clearly favored the views of students celebrating Cinco de Mayo over those protesting the festivities. But no one in this country has the ‘legal right to prevent criticism of their beliefs or even their way of life….’ The Ninth Circuit erred in holding the contrary here.”

“Public schools should be a marketplace of ideas,” added ADF Litigation Staff Counsel Rory Gray. “Those who claim to celebrate diversity should act in a manner that reflects that value. The First Amendment protects the freedom of all students to peacefully express their views.”