The Reign of the Heckler's Veto

Some years ago, historian Richard Pells wrote a book entitled Not Like Us: How Europeans Have Loved, Hated and Transformed American Culture Since World War II.  In it, Mr. Pells suggested that while many say, certainly in Europe, that the United States has had a disproportionate influence on the Old World, the facts suggest the opposite.  Over the last couple of decades, European jurists have protected the angry responders to provocative speech or action.  In American legal jargon, it is known as the Heckler’s Veto.  Instead of affirming the right to speech or thought, we side with those that are offended, sometimes to ridiculous lengths.  The examples from Europe have been headshaking but Americans have always felt they could smugly believe that it is not the way here.  According to the 9^th U.S. Circuit Court of Appeals this past week, that has changed.   

A couple of years ago, in a California high school, a group of Mexican-American students decided to make a public display over Cinco de Mayo.  In doing so, they hoisted a flag onto a tree in front of the school and celebrated underneath.  In a childish tit for tat, a couple of non-Hispanic students decided this would be a good day to wear shirts with American flags on it – in response to the festivities in front of the school.  Then, the Cinco de Mayo celebrants had an issue with this and threats were levied against the non-Hispanic students – in this case it was physical violence threatened.  The administration, fearing that a disturbance could quickly ensue and escalate, told the non-Hispanic students they had to take the shirts off or turn them inside-out.  Otherwise, they would be forced to leave the school.  Thus was struck the first blow on behalf of the Heckler’s Veto – the restriction of one person’s speech because of the potential disturbances caused by others. 

The parents of the American-flag wearing students sued and the case went before the 9^th Circuit Court of Appeals.  Typically, the 9^th Court is known for a rather liberal take on the Constitution.  Being based in California and covering territory that includes the Pacific Northwest, its ideological foundations are certainly in line with a segment of that region.  However, it seems their most recent ruling is more illogical than most.  The 9^th Court ruled that, in accordance to precedent set by the Supreme Court and other lower courts, schools have the right to do what is necessary to preserve order and the learning environment.   

Typically, this type of latitude by school administrators have been directed towards mandatory drug tests as seen in Board of Education v. Earls (2002) as well as searching student property (lockers) as seen in New Jersey v. T.L.O. (1985).  In 1988, the Court did decide in Hazelwood v. Kuhlmeier that newspaper stories about pregnant teens within the school (as well as sexual content) and students complaining about their parents were within the school’s purview to restrict.  However, one would have to surmise that the wearing of American flag emblazoned clothing hardly falls within the category of traditionally offensive or inappropriate material. 

Still, the jurists of the 9^th District have put a very strange twist on the traditional protection of speech, even in a traditionally restricted area like schools.  There is no Constitutional provision that says that speech can only be free if it does not offend.  Indeed, that is the most important speech to defend.  Presumably, this could go before the Supreme Court and hopefully, cooler and more measured judicial heads will prevail.  It clearly has not in California.  Europe has its own issues with this topic has they have, in some sectors, given up the fight and the importance of free speech and expression.  Should we give up ground on this issue, we will spend our last years on earth, in the words of Ronald Reagan, “telling our children and our children’s children what it was once like in the United States where men were free.”