Giving bullies a veto on the First Amendment

Is the American flag an exception to the First Amendment?

woman holds US flags_311 (photo credit: JORDANA HORN)
woman holds US flags_311
(photo credit: JORDANA HORN)
Imagine the following scenario: five Jewish kids go to school one day wearing their yarmulkes. The school’s numerous skinhead students are furious. At lunch they mill around the schoolyard, muttering threats and complaining to the assistant principal that that their political beliefs have been insulted. The assistant principal responds by calling the Jewish kids into his office and ordering them to take off their yarmulkes or go home.
Then imagine further that when the kids go to court to get help, the judge replies: Sorry, fellows, you’ve misunderstood the concept of free speech. It only lasts until a fascist bully threatens to punch you in the nose. After that, we’re on his side, not yours.
The head of every First Amendment lawyer in America explodes, right? Editorial boards at The New York Times and The Washington Post are struck down with collective strokes, right? Political progressives all over the country pour into the streets demanding that Obamacare be expanded to provide free backbone transplants for judges, right? Wrong, wrong and wrong, at least if you replace “yarmulke” with “American flag.” When a federal judge in San Francisco ruled earlier this month that school administrators in a California town had the right to kick out kids for wearing American flag T-shirts because they were offending Mexican-American students, the silence among First Amendment activists and the media was deafening.
This sad story of multiculturalism run amok begins in Morgan Hill, California, a small town south of San Jose previously notorious only for its hellishly efficient speed traps, during last year’s Cinco de Mayo celebration. (Cinco de Mayo, May 5, is the anniversary of an 1862 battle between the Mexican and French armies. Curiously, it isn’t celebrated in Mexico at all but it is an important date in the cultural calendar of many Mexican-Americans).
At Morgan Hill’s Live Oak High School, scores of the many Mexican-American students wore the red, green and white colors of the Mexican flag. But five kids came in American flag T-shirts. As the five sat at a table outside during a morning break in classes, assistant principal Miguel Rodriguez summoned them into the school office.
The Mexican-American students were angry about the American flags, Rodriguez warned the five, and they had to either turn their T-shirts inside-out or go home for the day.
“They said we were starting a fight, we were fuel to the fire,” sophomore Matt Dariano told The Gilroy Dispatch.
In federal court testimony later, Rodriguez admitted that the five boys weren’t doing anything wrong. But he had been warned that Mexican-American students were unhappy. And he recalled that on Cinco de Mayo the year before, Mexican-American students had threatened violence when somebody raised an American flag.
“Rodriguez, they are racist,” a Mexican-American student had yelled at the time. “They are being racist. [Bleep] them white boys.
Let’s [bleep] them up.”
The five boys went home. But three of them later sued Rodriguez, another administrator and the school district, saying they had been deprived of their freedom of expression and right to due process and equal protection under the law.
Hogwash, ruled Federal District Court Judge James Ware.
By making the bullies angry, the boys “could cause a substantial disruption with school activities,” which gave administrators the legal right to kick them out, the judge said. And in a truly Orwellian twist, he added that there was no need to eject students wearing the colors of the Mexican flag because nobody had threatened to beat them up.
Ignorant layman that I am, I would have guessed that the whole point of the First and Fourteenth amendments was precisely the opposite – that they exist to protect the rights of tiny, peaceful minorities rather than angry mobs.
But Eugene Volokh, a UCLA law professor whose conservative blog The Volokh Conspiracy is among the few media outlets following the Morgan Hill case, says the judge is probably correct under a 1969 Supreme Court ruling that allows schools to restrict speech that would “materially and substantially interfere with the requirements of appropriate discipline.”
So I guess I’ve learned something about the law. And about multiculturalism: that it sees American democracy as an enemy that must be beaten into submission. And the public schools: that they’ve declined to the point where they are unwilling or unable to protect the physical safety of a kid whose only offense is an affection for red, white and blue.
The writer is a columnist for the Miami Herald.