Ninth Circuit: Not safe for students to wear US flag shirts on May 5th
Thank goodness, sanity has been restored in the Ninth Circuit. A few rational decisions in the last few months made me think that the appeals court was turning conservative, but they restored their “Ninth Circus” moniker when they decided that schools can forbid the wearing of US Flag shirts on the pretend Mexican holiday that people of Mexican heritage celebrate on the 5th of May.
Originally, the day marks the Mexican victory over the French invaders at the Battle of Puebla on May 5th, 1862. I guess the French were trying to collect debts that the Mexican government owed them, so a tiny Mexican force repelled the repo men. What that has to do with modern day people of Mexican heritage in the US Southwest, I have no idea.
But anyway, Eugene Volokh wrote a piece in the Washington Post about the 9th Circuit’s decision;
The court points out that the rights of students in public high schools are limited — under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. And on the facts of this case, the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption. There had been threats of racial violence aimed at students who wore such shirts the year before:
[…]
This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech.
[…]
And this is especially so because behavior that gets rewarded gets repeated. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?
Yeah, well, not rewarding thuggery in this day and age is called racism, so we really couldn’t expect anything different from the panel of judges on the West Coast. And I guess it was too much to ask of the panel to impress upon the school officials to ban all flags if they’re going to ban one.
Category: Legal
Effin’ deplorable.
“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” – Thomas Jefferson
They should ban the celebration, and honestly I had to google to see what that celebration is all about in the first place. If they want to celebrate let them go on down to Puebla, Mexico to do so. Seriously, I am betting that at least 3/4’s of the people that “celebrate” that have no idea what it is even about.
What utter nonsense by the 9th Circus.
I wonder on what basis this was brought to the Court for adjudication?
I get them trying to legislate morality, it had been their hallmark for years.
But safety? Off of a hypothetical issue?
Really?
As a white kid who attended a high school with a large number of racist mechista fuckers, as well as some perfectly decent people of Mexican ethnicity who were openly pressured to be part of the Mexican KKK that is MECHA, I wore such a shirt every year on May 5. When somebody said something like this to me every year, my response (delivered with all of the delicacy and candor that can be expected of a resentful 14-year-old lad) was, “Fuck that shit. This is America!”
When the asshole liberal vice-principal told me to take it off, I said, “How ’bout you try and make me? See how that works out for ya.”
When any of the blatantly-racist (and, like VWPussy and their other klan counterparts, amazingly cowardly) mechista cocksuckers threatened to come back with lots of his friends and kick my ass, I repeated the immortal words of the great Bruce Campbell: “Come get some.”
Note–they never did. Not because I was any kind of badass (I wasn’t and I knew it), but because bullies tend to be cowards.
So I now reiterate: Fuck that shit! This…is…AMERICA!!!
Celebrate a victory over the French Army. If that’s the case then this should be an international holiday – who hasn’t beat the French??
I find it interesting that many folks in my neck of the woods (San Antonio) think it’s the Mexican Independence Day.
The reason why Mexican students were not required to remove their flag shirts? The “Caucasian students” did not present a threat of violence to the Cinco de Mayo celebrants, according to the courts. In other words, IF the white students threatened violence, then, we are to believe, by this reasoning, that the school district would have prohibited the wearing of a Mexican flag shirt or the displaying of the Mexican flag. All those who believe that the school district would have done so or will do so, raise your hand.
“This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech.”
And yet, when this happens with regularity on college campuses against conservative speakers, No one on the left says a thing…
I understand the holiday is at best a minor one in Mexico proper (it’s not a Mexican national holiday, but is rather a regional holiday in the Puebla region). Cinco de Mayo is only a big deal on this side of the border.
Mexico’s Independence Day is 16 Sep.
To further protect students from any violence, all female students will be required to wear burkas. No more sexual assaults. Seems just as logical.
Did the court address the students of Hispanic heritage taking down the American flag on the school flagpole and hoisting the Mexican flag?
A few rational decisions in the last few months made me think that the appeals court was turning conservative
Jonn, even a broken clock is right twice a day…the 9th will occasionally stumble into a legally appropriate decision, but it it no way represents any sort of collective intellectual or ideological shift….a tiger can be taught to jump through a hoop on a fire, but it’s still a tiger as the two idiots in Vegas discovered…likewise this court will mostly lean heavily on judicial activism to the left of center…regardless of the occasional stumble to the right.
If my child was in this school district I think I would wear a US Flag shirt and drop him off in class, and I would gladly sue these fuckers for restricting my rights and see if I could get the SCOTUS to strike down the 9th decision on first amendment grounds….
While I understand most of us are wary of the ACLU they are not afraid to take on these kinds of cases, usually for nazis and not patriots but they have stepped on regularly on 1st amendment issues…
New laws: on July 4th, the wearing of anything that resembles a British flag shall be prohibited. On December 7th, anything resembling a red ball shall be prohibited. Both of those dates are rather important to MY history and background.
Seeing those symbols on those dates might offend me…
Where will it stop????
Sucks.
I’m wondering if the students denied the right to wear the US flag have a legitimate civil rights claim (equal protection under the 14th Amendment). As 2/17th Air Cav and others have pointed out, the wearing of ALL national emblems was not prohibited – only one espousing a particular view (e.g., allegiance to the US). A reasonable person would hold that equal protection would seem to require an “all or none” policy in this context.
Am I off-base, 2/17 Air Cav?
Two of my wife’s nephews went to school in Morgan Hill, one of the schools that boosted a student a couple of years back for wearing an American flag shirt on 5 May. I was hearing first hand accounts that the I never saw in the media how a lot of racist white people supported the “offender”. The idiots in the 9th Circuit need to be replaced…
Drooling dumbasses…
No, you are not and that constitutional issue was raised. In fact, it was the heart of the plaintiffs’ case. However, at the district court, the entire matter was tossed on a motion for summary judgment. In other words, even assuming the truth of all facts alleged, the plaintiffs had to lose because of the discretion vested in the school district to ensure the safety of students. The fact is that school districts have quite a lot of latitude when it comes to curtailing 1st Amendment rights. What would have been very cool is if the parents of the US flag-displaying students showed up at school (ostensibly to speak with their children or a school administraor) wearing Old Glory shirts or carrying US flags and were barred or showed the door.
Look people, the sooner you realize that any attempt to show patriotism and love of America is racist, the better off you will be.
I applaud the 9th Circuit for their sound logic and reasoning and allowing our 1st Amendment rights to be hoisted into the nearest shitter.
And excuse me, but I thought Cinco De Mayo was just a goddamn excuse to drink shitty tequila and Corona’s. Who knew it actually had some significance. I guess when your whole military history revolves around getting your ass handed to you by everyone from the Inca’s to the Gringo’s, you take what you can get……
@5nbcguy54 – you and I are in the same neck of the woods. My impression is that around here, most folks (Mexican and Anglo alike) just look at Cinco de Mayo as another excuse to have a party. Sure, there may be a few “la raza” nutjobs who want to make it into something more, but most folks don’t seem to care.
A nice contrast is the month-long Washington’s Birthday celebration in Laredo, TX, a city that is roughly 95% Hispanic –
http://www.wbcalaredo.org/home117/
Welcome to “los Illegales”. Order one and get 22,000,000 plus. Because we ALL need our maids and gardeners. Geez.
78-82% of the students at that high school failed the state standardized Math exam in each of the past three years. The school is producing job security for police, criminal courts, and correctional personnel. So, there’s that.
@20, well then that exam is obviously racist and must not be given any more!!!!
2/17 Air Cav: Thanks. Hadn’t read the decision, so didn’t realize that the argument had already been made.
Wonder if this one will be appealed to the SCOTUS, and if the SCOTUS will use it as a vehicle to clarify/define the limits of permissible infringement by schools under Tinker?
PS: you left out “unionized educators” in your “producing job security” comment above. (smile)
@Mr Bill. Good stuff. I never knew about the celebration in Laredo. It is, shall I say, refreshing. It’s a shame us Anglos don’t actually celebrate the Founding Father’s birthday properly (10% off at a furniture store and no mail delivery to me doesn’t constitute “celebrating”).
So…can you wear it 364 days a year? If it is not safe …then the powers that be must make it safe.
@20 AND A STEADY STREAM OF DEMOCRAT AFFILIATED VOTERS….
People move here to have freedom, and then promptly start trying to take freedom away.
Hell Hondo here all these years I thought they were celebrating the the new Chevys on September 16.
I thought that was a holiday was made up by Chilis to get people to drink margaritas.
@22. The Supremes? No, it’s quite unlikely. First, if appealed, I don’t think they would take it. The basis for the decision was much more the school district’s valid exercise of discretion than anything else. In other words, whatever the argument, an appellant would have to overcome the “Yeah, so what?” argument in trying to get to the 1st Amendment issue. Second, when it comes to school district decisions, barring a matter of national import, the Supremes don’t go there, leaving what are still regarded as state and local education matters alone.
@28 2/17 — so …. just trying to understand what you are saying … the proper response here is to replace the school board in the next election? School boards are elected, so they can be replaced. The judges who sit on the 9th Circuit are appointed so, except for retirement or impeachment, they cannot be replaced. Did I get it right?
I don’t get the whole issue. If I was from Mexico and had come to the US for a better opportunity, I would be overjoyed to celebrate the American flag. The American flag represents America and that is where the better opportunity comes from. If you change America to be like Mexico then the opportunity disappears. How does that help anybody? I don’t mind people celebrating their heritage but they are here for what American is. Why bitch about it?
By the way, the comment that even a broken clock is right twice a day doesn’t exactly apply. Unlike a broken the 9th Circuit did not “do nothing”, they actually did something and still got it right. Up to this point in my life the 9th Circuit has been the source of wonder, amazement, and comments like “you have got to be kidding me!” (re: “kidding” this is a family blog, right?) While it seems highly improbable, maybe they will do something sensible again. I mean, who would have thought that they would rule that way on concealed carry permits? It could be a fluke, an aberration, but who knows? Maybe they felt so boxed in by the SCOTUS decisions that they knew it would be a waste of money and effort to rule otherwise.
@29. @29. Yes, the answer is to replace those whose decisions resulted in this horror. But that is unlikely because too many people don’t give a shit and the rest ignorantly support the decision of the school district. Another approach is for the white students to threaten violence aginst any student who wears a Mexican flag shirt or carries a Mexican flag. You see, that would create the same situation that prompted the school district to take the action it did to protect against violence. Presumably, the school would want to be consistent in its protective policy and do exactly that: ban Mexican flags. Yeah, I hear you. Fat chance.
Speaking as someone who grew up in Colorado, Cinco de Mayo was created so that people of Mexican descent can drive up and down Federal Blvd waving the Mexican flag and shoot guns into the air (yes, sometimes the bullets hit someone on their way back down. Tragic.). I’m guessing that most of the people celebrating have no idea what the date represents.
None of this would be an issue if we had annexed Mexico after the war, like they wanted us to. They all want to be Americans and we like their beaches, so win-win for everyone. Our southern border would be much easier to manage too, wouldn’t it?
Well, on the heels of this story, there’s another from California that is crazier. Get this. Remember the video that no one saw, the one that, according to The Emperor and his lackeys, sparked the “spontaneous” Benghazi attack? Sure you do. Well, the 9th Circuit just ruled that YouTube must remove that video. Why? Because, it found, an actress who appeared in it for five seconds (!) and who had NOTHING whatsoever with writing, directing, or producing the video had “authorship rights” and YouTube was infringing upon her rights to the video. Huh? This is soooooooooooooooooooo much bullshit, it’s unbelievable. With every such stupid and contrived decision, 1st Amendment protections are stripped away from those subject to such ridiculous court pronouncements.
I should add to cmt 32 that the decision was 2-1, not unanimous. Now, this one may well make it to the Supremes. Of course, given that jerk of a chief justice John ” I got it! It’s a tax” Roberts, who knows what might happen. When the hell does the rebellion start? Anyone?
Gee what if hundreds showed up in patriotic regalia one day. It would be a lesson in the American tradition of civil disobedience.
Isn’t that violating freedom of speech? If they say you can’t wear an american flag shirt on 5 May 2014?
YET THEY ALLOW THE WESTBORO BAPTIST CHURCH PROTEST SERVICE MEMBER FUNERALS AND BURN AMERICAN FLAGS UNDER THE “OH THEY ARE JUST EXERCISING THEIR RIGHT TO FREE SPEECH” EXCUSE…
2/16. The difference is the forum where the free speech is being exercised. Schools can limit speech in ways other gov’t elements may not. It is the rationale here that is ridiculous: The actual targets of the threatened violence (“them white boys”) are the ones whose speech is curtailed in order to preserve the peace. That is bassackwards. Elsewhere, when you threaten someone with violence, you run a risk of being arrested. In California, if you threaten someone with violence, you win. That’s a lesson not usually taught in a civics course. But, for all I know, they’re teaching Mexican cicics at that school.
@35: I’m with you. This ruling seems to cry out for massive civil disobedience. If half the student body showed up wearing American flag shirts on 5/5, would they send them all home?