# Ninth Circuit sides with school in banning American flag on Cinco de Mayo. **URL:** \ **Category:** Great Debates\ **Created:** [February 28, 2014, 1:37pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512 "2014-02-28T13:37:58Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 28, 2014, 4:18pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/21 "2014-02-28T16:18:43Z")
What ALL students should be taught is that everyone’s speech is protected. That you can disagree with it, you can not like it, but that’s part of living in America. They should also be taught that speech is one thing, violence is another. So, let the students where whatever flag they want, but the first kid who gets violent is the one you go after—hard—not the ones simply exercising free speech. As far as Czarcasm’s question, how do _you_ think he’d respond? Should respond? ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [February 28, 2014, 4:19pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/22 "2014-02-28T16:19:56Z")
The school’s decision was stupid; the Ninth Circuit’s decision was not. But **all** the students involved need a good bitch-slapping for being assholes. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 28, 2014, 4:27pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/23 "2014-02-28T16:27:47Z")
> [@magellan01](#): > > What ALL students should be taught is that everyone’s speech is protected. That you can disagree with it, you can not like it, but that’s part of living in America. They should also be taught that speech is one thing, violence is another. So, let the students where whatever flag they want, but the first kid who gets violent is the one you go after—hard—not the ones simply exercising free speech. Does that mean that there is no such thing as “incitement to riot”, and does what you are proposing match up with the rights they will have after they leave school? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 28, 2014, 4:33pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/24 "2014-02-28T16:33:36Z")
> [@magellan01](#): > > Thanks for the term “Heckler’s Veto”. I was unaware of it. > > As far as Tinker, I’m confused. Didn’t SCOTUS side with Tinker and the other students and find that the students’ First Amendment rights were, indeed, violated? > > This link is in line with the others I checked: > > What am I missing? I’d say you’re missing the language from the decision that explains when schools may infringe on conduct that would otherwise be protected by the First Amendment. It’s true that in the _Tinker_ case, the Court said that those students were engaged in conduct that was still protected. But they also laid out a test for when schools COULD act to forbid student conduct: > [@Tinker v. Des Moines Independent Community School Dist.](#): > > But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. > . > . > . > If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, **at least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school**. . . . . In the circumstances of the present case, the prohibition of the silent, passive “witness of the armbands,” as one of the children called it, is no less offensive to the Constitution’s guarantees. > > As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. (emphasis added and internal citations omitted) So the rule is that schools may curtail expressive conduct otherwise protected by the First Amendment _if the school can show that the conduct might reasonably lead to substantial disruption of or material interference with school activities_. In this case, the evidence showed that the school authorities did forecast substantial disruption of or material interference with school activities and the court found that such forecast was reasonable. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 28, 2014, 4:41pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/25 "2014-02-28T16:41:08Z")
> [@Czarcasm](#): > > Does that mean that there is no such thing as “incitement to riot”, and does what you are proposing match up with the rights they will have after they leave school? I have always heard the phrase as referring to a speaker exhorting his own sympathizers to riot. That is, a speaker who urges others to commit immediate violence is “inciting a riot.” The phrase does not seem applicable to a speaker (or someone conducting himself expressively in ways other than literal speech) whose actions spur _opponents_ to violence. By this precise reckoning, a school could demand that students refrain from wearing “Day of Silence” or rainbow T-shirts in reaction to threats by other students to stomp any queers they see. And that demand would be just as constitutional. And it would be just as much a heckler’s veto. The court correctly applied the existing law. I sense your approval of the court’s action, and the school’s action, **Czarcasm**. But I invite you to consider that you might _disapprove_ if the same framework were used against a cause you support. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 28, 2014, 4:45pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/26 "2014-02-28T16:45:01Z")
You ought to disapprove regardless of the cause, even if the students were trolling. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 28, 2014, 4:46pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/27 "2014-02-28T16:46:22Z")
> [@Really\_Not\_All\_That\_Bright](#): > > You ought to disapprove regardless of the cause, even if the students were trolling. I think it’s to society’s benefit to avoid rewarding the heckler by permitting the veto. In my view, rewarding the heckler will reliably lead to more heckling. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [February 28, 2014, 4:48pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/28 "2014-02-28T16:48:01Z")
> [@Bricker](#): > > I have always heard the phrase as referring to a speaker exhorting his own sympathizers to riot. That is, a speaker who urges others to commit immediate violence is “inciting a riot.” The phrase does not seem applicable to a speaker (or someone conducting himself expressively in ways other than literal speech) whose actions spur _opponents_ to violence. Would the “fighting words” doctrine apply here? It does appear that the students were wearing the shirts specifically to provoke fights. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 28, 2014, 4:52pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/29 "2014-02-28T16:52:26Z")
> [@Bricker](#): > > I think it’s to society’s benefit to avoid rewarding the heckler by permitting the veto. In my view, rewarding the heckler will reliably lead to more heckling. I agree. My comment was addressed to **Czarcasm** - that he ought to disapprove of the court’s action. > [@Miller](#): > > Would the “fighting words” doctrine apply here? It does appear that the students were wearing the shirts specifically to provoke fights. No. Fighting words is an extremely limited doctrine, and requires at the very least that the words be personal insults (Cohen v. California). ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 28, 2014, 4:54pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/30 "2014-02-28T16:54:00Z")
> [@Bricker](#): > > The court correctly applied the existing law. I sense your approval of the court’s action, and the school’s action, **Czarcasm**. But I invite you to consider that you might _disapprove_ if the same framework were used against a cause you support. I support the court’s decision, but if there was previous history of problems to refer to I would support a school board’s decision to do the same thing pertaining to _any_ group, even one I support. Double standards are a weakness, in my opinion. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 28, 2014, 4:57pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/31 "2014-02-28T16:57:03Z")
> [@Bricker](#): > > So the rule is that schools may curtail expressive conduct otherwise protected by the First Amendment _if the school can show that the conduct might reasonably lead to substantial disruption of or material interference with school activities_. In this case, the evidence showed that the school authorities did forecast substantial disruption of or material interference with school activities and the court found that such forecast was reasonable. Got it. Thanks. Here’s what I’ve been wondering: is there a legal distinction, or might one be drawn, that distinguishes what I’ll call “Everyday Speech” from “Issue Speech”? Here’s what I mean by each, as it pertains to dress. Everyday Speech would be just that, clothing that one might don on any given day throughout the year. So, jeans would be a form of Everyday Speech. Likewise, a striped shirt, sneakers, a black belt, etc. Issue Speech would be those items that are chosen specifically to make a point or illicit a response. Tinker’s black arm band falls under this, as would any type of protest message. Now, I can see how a school might be within its rights to ban Issue Speech clothing, but I can’t imagine how in the world it would be within its rights to ban Everyday Speech clothing. All of a sudden they might declare, no polo shirts next week", “no sneakers next Tuesday”, “no blue shirts for the month of January”, etc. It seems to me, that t-shirts and other things with some version of the American flag are worn throughout the year. That on any given day you ken go into a high school and you’ll see some form of it. To me that is not at all like the black arm bands. It is my guess, that the students of Mexican heritage also probably wear things throughout the year that advertise their Mexican pride. So, I see that the American flag garb definitely falls under Everyday Speech and that the Mexican flag garb likely does. But the focus here is on the American flag garb, because that is what was banned. It seems to me that it this is fundamentally unlike Tinker, which was clearly Issue Speech garb. So, my question, does the law make a distinction like that? And Should it? ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 28, 2014, 4:59pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/32 "2014-02-28T16:59:50Z")
> [@Miller](#): > > Would the “fighting words” doctrine apply here? It does appear that the students were wearing the shirts specifically to provoke fights. How do you know that. Do you have any information that they never wore such clothing prior to Cinco de Mayo. Even so, why are they the wants provoking a fight and not the Mexican kids? ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 28, 2014, 5:02pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/33 "2014-02-28T17:02:29Z")
> [@Czarcasm](#): > > I support the court’s decision, but if there was previous history of problems to refer to I would support a school board’s decision to do the same thing pertaining to _any_ group, even one I support. Double standards are a weakness, in my opinion. So, as I think **Bricker** asked, if every time a kid wore something that promoted gay pride a bunch of kids made sure their was violence, the school could, and should, then ban all such clothing. Is that right? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 28, 2014, 5:05pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/34 "2014-02-28T17:05:25Z")
> [@Miller](#): > > Would the “fighting words” doctrine apply here? It does appear that the students were wearing the shirts specifically to provoke fights. Nope. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), is the decision that gave us “fighting words,” and the Court has been backing away from the doctrine ever since. But even at its prime, “fighting words,” were: > [@](#): > > …those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Fighting words, then, are essentially _per se_ insulting and provoking, and can’t be, as here, something on which reasonable people would argue have value in the marketplace of ideas. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [February 28, 2014, 5:09pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/35 "2014-02-28T17:09:19Z")
> [@magellan01](#): > > How do you know that. I don’t. It’s an assumption. ---
**Author:** ![miss\_elizabeth](https://avatars.discourse-cdn.com/v4/letter/m/838e76/32.png) [@miss\_elizabeth](https://boards.straightdope.com/u/miss_elizabeth)\ **Post date:** [February 28, 2014, 5:09pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/36 "2014-02-28T17:09:37Z")
> [@Shodan](#): > > Stop making sense. > > Interesting principle to establish - if I don’t like what you say, all I need to do is target you, and the authorities will shut you down. > > “Oh, you want to wear a T-shirt with a rainbow flag on it? Someone might beat you up if you do that. So we will outlaw your T-shirt.” Is someone sexually harassing you? Your T-shirt is too tight, so go change it. Etc. > > Regards, > Shodan Do you understand that this is exactly how school dress codes already function, or were you being sarcastic? I also love all the people saying these kids were just being patriotic. Uh huh. And when I hold my finger a millimeter in front of someone’s face I’m “Not touching them” too. Thank goodness the school has more sense than that. ETA: Schools also ban the wearing of certain colors because it might start gang fights, as the OP mentioned. All of this _already happens._ It’s just galling when the standard is finally applied to the majority, isn’t it? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 28, 2014, 5:09pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/37 "2014-02-28T17:09:42Z")
> [@magellan01](#): > > So, as I think **Bricker** asked, if every time a kid wore something that promoted gay pride a bunch of kids made sure their was violence, the school could, and should, then ban all such clothing. Is that right? Taking the _whole_ case into account, in this hypothetical example are the kids wearing them specifically to disrupt some specific event, or are they wearing these as every day attire? If these kids were conspiring to wear these clothes specifically to get a rise out of, say, a group of religionists that were having an otherwise orderly gathering at lunch, then I would expect the school to have the same response as they did in this case. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 28, 2014, 5:28pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/38 "2014-02-28T17:28:15Z")
> [@miss\_elizabeth](#): > > Do you understand that this is exactly how school dress codes already function, or were you being sarcastic? No, that’s not how dress codes function; it’s how hecklers and assholes are enabled. > [@](#): > > I also love all the people saying these kids were just being patriotic. Uh huh. And when I hold my finger a millimeter in front of someone’s face I’m “Not touching them” too. And all the Mexican displays were equally provocative and need to be outlawed, right? And as **magellan01** mentions, if some student wears a rainbow flag and gets beaten up, the solution is to prevent the rainbow flag from being worn. Right? Or some girl wears a skimpy tank top and gets groped in the hallway, then the best way to deal with the problem is to tell her not to wear the tank top again. Regards, Shodan ---
**Author:** ![Algher](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Algher](https://boards.straightdope.com/u/Algher)\ **Post date:** [February 28, 2014, 5:29pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/39 "2014-02-28T17:29:24Z")
> [@miss\_elizabeth](#): > > Do you understand that this is exactly how school dress codes already function, or were you being sarcastic? > > I also love all the people saying these kids were just being patriotic. Uh huh. And when I hold my finger a millimeter in front of someone’s face I’m “Not touching them” too. Thank goodness the school has more sense than that. > > ETA: Schools also ban the wearing of certain colors because it might start gang fights, as the OP mentioned. All of this _already happens._ It’s just galling when the standard is finally applied to the majority, isn’t it? These kids are not the majority anymore in most California schools. Non-Hispanic whites are 48.4%, Hispanics are 34%, Asians are 12% in the Morgan Hill district. As for gang colors - all colors were banned, not just that of one gang. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 28, 2014, 5:30pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/40 "2014-02-28T17:30:51Z")
> [@Miller](#): > > I don’t. It’s an assumption. Given it’s the country’s flag, and the fact that these kids appear to be patriotic, do you think it’s a reasonable one? [Previous page](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512.md?page=1) [Next page](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512.md?page=3)