Let us lift our eyes from the substance of the dispute and consider what the Ninth Circuit Court of Appeals is doing procedurally. Judges Judges O’Scannlain, Tallman and Bea are wise to the game. When the left is losing an argument it changes the game.
The left cannot win in the court of public opinion when it seeks to ban the American flag. The left cannot win when the argument is about the First Amendment. So they change the game and the case becomes about whether school administrators can protect children against potential violence. The ninth circuit, having changed the game, now comes down foursquare on the side of children and prohibits the wearing of the flag on an administrators say so. A say so which is nothing more than an internalized feelings, a subjective feeling, that violence somehow might ensue.
The dissenting judges properly point out:
“if the decision is permitted to stand, it will have a detrimental impact on all student speech by rewarding violence over civil discourse."
But that, of course, is the whole idea of the majority opinion, to remove any objective standard upholding free speech and substitute a grant to the leftist mob to control speech. Here is how we jettison the First Amendment and substitute race-based control of speech and education.
The dissenting judges properly label this old trick as, "heckler’s veto doctrine." We might well ask ourselves have we not seen an analog of this doctrine at work in Ferguson Missouri when the police stood by and passively watched looters and arsonists at work? Will we not see this same principle at work in how the police are permitted to function on the streets of America in the wake of Eric Garner? What did we see as we watched the Ground Zero occupations?
The whole point of the First Amendment is to protect unpopular speech because, in logic, popular speech really requires no protection. Normally, we fear repression of speech by the government but here leftist elements of the government instigate repression of speech (“if the decision is permitted to stand, it will have a detrimental impact on all student speech by rewarding violence over civil discourse.") by non-governmental players to justify repression of speech by the government. Here we see the government taking speech that might be popular and labeling it unpopular. But whether popular or not, it is not within the province of the government to ignore the First Amendment because potential subjective reaction rather than the objective nature of the speech itself is not free, i.e., it constitutes a clear and present danger etc..
Even worse, the law has long recognized that the power of the government to prejudge speech is quite different from the power of government to punish speech in the aftermath. The former power is censorship and he goes to the very heart of the First Amendment and to our democracy. To invest in school administrators the power to imagine violence and therefore grant them the power to censor speech is doubly wrong. High schools should not be either penitentiaries or day care centers, they should be centers of learning of Socratic debates, in short, of free speech. Censorship in academia, academia where attendance is coerced by government, is more than three times as wrong.
