Tuesday, November 15, 2011

CA: Court backs school in flag-tee dispute

We read:
"A Morgan Hill high school principal reasonably feared violence on campus when he saw a group of students wearing American flags on their shirts on Cinco de Mayo, and he did not violate their freedom of speech by telling them to turn the shirts inside out or go home, a federal judge has ruled.

Citing past clashes between Mexican American and Anglo students over their clothing on the Mexican holiday, Chief U.S. District Judge James Ware of San Francisco said school officials 'reasonably forecast that (the shirts) could cause a substantial disruption' and were entitled to take steps to prevent it"

Source

This is a clear case of prior restraint, which was always improper under English law and is unconstitutional in the USA.

It is condemning or restraining people not for anything they have done but for something someone thinks they MIGHT do. Allowing such restraint would be a very slippery slope. The verdict of the San Francisco judge should clearly be appealed as unconstitutional. Prior restraint of free speech is particularly obnoxious as the 1st Amendment is violated too -- to say nothing about a patriotic display being banned.

17 comments:

Anonymous said...

Hey, it's Mexifornia. What did you expect.

The American said...

I only hope that one of these students complains on the 4th of July (althought they are not in school then) or other "American" holiday if he sees a Mexican flag ANYWHERE.

Let’s see how fast the cries of racism crop up then!

Anonymous said...

So if there's a group hostile to gays would the school ban wearing gay pride tshirts for fears of violence? Or is this limited to just hating america?

Anonymous said...

Will these same students be permitted to wear American flags on Memorial Day or Veteran's Day?

Anonymous said...

This was most certainly not "prior restraint" as Jon says. A school has the right to limit that which will disrupt the educational environment. If "prior restraint" were the issue, then no dress code could ever be enforced.

This is, however, a case of the school not being "content neutral" on an item of dress.

The school chose one item - the American flag - and said the kids cannot wear it while allowing other flags and other nationalistic emblems from other countries.

It is there the decision goes wrong. The school can say "no flags on clothing," but they cannot say "no flags of this and that country."

The policy must be content neutral.

Kee Bird said...

call for the judges removal from the bench demand the principals resignation

jonjayray said...

The reason I say it was prior restraint is that the school specifically said it was afraid of what someone MIGHT do

Sig said...

"the school specifically said it was afraid of what someone MIGHT do"

So then why not just kill all babies when they are born? After all, EVERYONE MIGHT do something wrong throughout their lives.

The real problem is that the schools are so focused on putting band-aids on the symptoms instead of fixing the root cause. They should be focusing on teaching and learning so that we can educate our children to live and survive in this world. Instead, they wast their time indoctrinating out children with this Politically Correct crap.

Anonymous said...

Yes - societies always needed under-classes - the poor or uneducated - not only as manual labor but as cannon-fodder in perennial wars - including today.
Now we have too many over-qualified college graduates who as a result can only get jobs (if at all) in such as McDonalds or supermarkets, or indeed the military!

Anonymous said...

The reason I say it was prior restraint is that the school specifically said it was afraid of what someone MIGHT do

The problem is that "prior restraint" as a legal matter is the prevention of something being published. In this case, the t-shirts being worn by the students were already published, but the school did not allow them to be worn.

It is not a "prior restraint" issue, but a violation of the 1at and 14th amendment because the students' right to the same speech others were granted was denied based on the content of the denied students' speech.

jonjayray said...

Printing a shirt is not publishing it
Wearing it is

Anonymous said...

Printing a shirt is not publishing it
Wearing it is


Sorry. but you are wrong. "Prior restraint" requires the work not be made available.

In this case, the t-shirts were available and were able to be worn. The restriction was on the place where they could be worn - not the prohibition of being worn altogether.

As I said, under your definition of "prior restraint," all dress codes are "prior restraint," and we know that is not the case.

This is a censorship and discrimination issue - not one of prior restraint.

jonjayray said...

All deeds are relevant to a particular place so prohibiting a display in a particular place is prior restraint

Anonymous said...

All deeds are relevant to a particular place so prohibiting a display in a particular place is prior restraint

Patently false.

"Prior restraint" requires the government prevent the publication of information or ideas. It has no separate time or place restrictions. It is a block of the dissemination of information en toto, not just at a particular place and time.

"Prior restraint" is the total censorship of an item, idea or information.

As the kids had the shirts and were wearing them elsewhere, this cannot, by definition, be a case of "prior restraint."

jonjayray said...

You have a very narrow view of prior restraint

jonjayray said...

You are the sort of advocate one would hire if one wished to abolish a constitutional protection

You would narrow it to non-existence

Anonymous said...

You have a very narrow view of prior restraint

Prior restraint is narrowly constructed. "Prior restraint" requires that certain criteria be met.

That did not happen in this case.

You are the sort of advocate one would hire if one wished to abolish a constitutional protection

Sure. By saying that you are wrong in your interpretation of "prior restraint," that means I am against the doctrine that eliminates prior restraint.

That makes no sense at all.

You would narrow it to non-existence

And you would expand it to where it would be meaningless.

Face it Jon, you are wrong on this one. In this case, the First and 14th Amendment are in play.

Prior restraint was decided in Near v. Minnesota in which the Supreme Court decided the government could not prevent the publication of items into the public arena even if those items were later proven to be slanderous or libel.

The key component is the items were allowed into the public arena.

As in the Live Oak case the kids had the t-shirts, it cannot be argued the government had engaged in any type of prior restraint.

The t-shirts had been publish.

Public restraint, by definition and precedent, does not apply in the Live Oak case.