Anti-Gay T-Shirts Not Allowed – For Now
The AP is reporting that ADF’s cover-twink, Tyler Chase Harper, can be restricted from wearing a shirt that says “homosexuality is shameful” to school – at least until his case can be heard.
Harper is claiming a first amendment right to try to shame his fellow students.
A majority of judges said, however, that Tyler Chase Harper was unlikely to prevail on claims that the Poway Unified School District violated his First Amendment rights to freedom of speech and religion for keeping him out of class when he wore a shirt with the message “homosexuality is shameful.”
The lawsuit results from Harper’s response to the 2004 Day of Silence. Harper refused to change his shirt and so was held out of class for a day and allowed to do homework in a conference room.
On Thursday, the three-judge appeals court panel said “the school is permitted to prohibit Harper’s conduct…if it can demonstrate that the restriction was necessary to prevent either the violation of the rights of other students or substantial disruption of school activities.”
The opinion, written by Judge Stephen Reinhardt and joined by Judge Sydney Thomas for a 2-1 ruling, didn’t decide the merits of the student’s lawsuit, which will be heard in federal court in San Diego.
The dissenting judge seemed unable to distinguish between the tactics employed by the Day of Silence and those employed by Harper:
“Harper’s T-shirt was not an out-of-the-blue affront to fellow students who were minding their own business,” Kozinski wrote. “Rather, Harper wore his T-shirt in response to the Day of Silence, a political activity that was sponsored or at the very least tolerated by school authorities.”
Kozinski did not differentiate between an event that was focused on inclusion and tolerance of others and a T-shirt message that sought to diminish and show distain for others. Kozinski validated Harper’s belief, a common one among the politically religious, that stating any beliefs which they do not endorse is an attack on them and their right to harm gay people.
Fortunately, for the moment, the politics of exclusion and shaming have been put on hold.
UPDATE: The Los Angeles Times has a more substantive article
Yes, he did, and I think he did so correctly. The First Ammendment doesn’t just protect speech that we like or approve of or that includes everyone. Just as racists are permitted to spew their hatred, just as the KKK is permitted to spread its message of intolerance so too are bigots allowed to spread their message. And I’m glad of that.
s very good analysis of the legal issue can be found here.
I find Chase Harper to be a loathsome creature if you want to know the truth. Frankly I think he’s wrong, I think his message is wrong and I think he is ultimately going to regret his beliefs. But they are his beliefs.
As Professor Volokh points out the controlling precedent is Tinker v Des Moines – a case involving wearing black arm bands in school to protest the Vietnam war in the 60s… at the time an unpopular opinion. But because it was not “materially or substantially disruptive” it was deemed to be unconstitutional to prohibit the wearing of those armbands or any other similar form of speech.
In this case Chase Harper is wearing a t-shirt. He’s not preaching, he’s not screaming it out, its a t-shirt. You don’t have to agree with his message to see that he has a right to wear it.
He may have a right to wear it in public, but he was wearing it in a school, which means that other students didn’t have the choice to walk away from it. He was de facto harrassing his classmates and his conduct was disruptive.
What conduct? he just wore the shirt. That’s a passive statement and he’s pretty clearly making a political point. The law can’t say one political point is “valid” and one is “invalid”
I’m not an expert on the law, but it seems to me the school should be able to say that a harrassing message on a tshirt is unacceptable in school.
If it was harassing I’d agree. But lets look at it another way. Should a school be permitted to prohibit a T-Shirt that says “War is shameful”? or “Republicans are shameful”? Surely a lot of people would agree and a lot would disagree with both statements, but should they be silenced merely because they’re controversial?
In the end I think those messages are reasonable, as are messages of the opposite view, if a republican wants to wear a “Democrats are shameful” t-shirt I don’t see why people should be bothered either. The best counter to speech is simply more speech.
I think it’s well-established that schools retain the legal right to regulate what students wear and how they express themselves — i.e. no t-shirts showing naked women, no racist handouts.
Chase Harper was wearing a shirt that explicitly said sexuality is shameful — and, given the timing, also implied that tolerance is shameful. A comparable shirt could have said Jesus Hates Jews or Jesus Hates Catholics — protected religious speech, right? No, not in school.
Why? Merely because such views are offensive? By the same logic, a cross, which is a form of speech symbolizing Christianity should be banned from being worn by students because such articles exclude non Christians, something which obviously shouldn’t occur.
Students are entitled to hold religious views and students are entitled to express religious views. What students are NOT entitled to do is say “Jane Doe is Shameful” because at that point you’re not making a political point you’re attacking another student.
“Why? Merely because such views are offensive? By the same logic, a cross, which is a form of speech symbolizing Christianity should be banned from being worn by students because such articles exclude non Christians, something which obviously shouldn’t occur.”
No, by the same logic a shirt saying “Judaism is shameful” should be banned.
“No, by the same logic a shirt saying “Judaism is shameful” should be banned.”
But again, WHY? Where in the First Ammendment is it written that we only have a right to non-offensive speech? Where is it written in Tinker v. Des Moines or any other case that speech should be prohibitted in school just because someone disagrees with the content? In almost any protest (which the DoS is) there are going to be counterprotestors. Why should the DoS be permitted and Chase Harper’s opinion excluded?
Yes, I’m gay and yes I find Harper’s message offensive but I also acknowledge that he finds the Day of Silence offensive to his ideological beliefs. I think he’s wrong, but I think Voltaire is right: “I disagree with what you say, but I’ll defend your right to say it to the death”
sorry, that anonymous comment was mine, I must have accidentally signed out.
Kendall, it’s possible to express one’s disapproval of homosexuality, Judaism, divorced parents, or whatever with civility and without such hostility.
Most mainline Christians (and most Americans, I hope) reject the notion that “religion” is a blank check that can excuse any level of lawlessness, violence or harassment, especially on public property. People who use “religion” for such purposes are doing just that — exploiting the word “religion” for activities that are in fact non-religious, immoral and sometimes illegal and dangerous to society.
The school seems to have had a rule against dress and behavior that “created a negative and hostile working environment for others.” The shirt clearly did that. Such a shirt would not be permitted by most major employers today.
On the other hand, Judge Kozinski made the good points that no one was injured by the speech; there was no apparent disruption to justify the subsequent discipline (in other words, the discipline was pre-emptive); and students managed the situation well.
So my feelings on this incident are a bit divided. I tend to oppose pre-emptive restrictions on speech, and I would prefer to see mature students manage their own crises.
Kendall, if you’re arguing that all forms of speech should be permitted among youths, no matter how offensive, then I think you will find many conservative parents who disagree with that. They would not appreciate schools being overrun with obscene language and profane language.
But I wish you luck in upholding free speech at such a universal level.
“Kendall, if you’re arguing that all forms of speech should be permitted among youths, no matter how offensive, then I think you will find many conservative parents who disagree with that. They would not appreciate schools being overrun with obscene language and profane language.”
Couple quick things. First, I’m not a conservative I’m a libertarian who simply believes in the principle of free speech.
Second, Judge Kozinski’s point that it was “non-disruptive” comes directly from Tinker v. Des Moines
Which held in part:
To me that’s not Judge Kozinski making a “reasonable point” he’s parrotting the standard set down in Supreme Court precedent which judges are generally supposed to flesh out and which they don’t have the authority to overturn.
Seems to me he has the right to wear that shirt.
Seems to me the fellow students whom he’s trying to insult and shame have the right to wear “Homophobia is Shameful” shirts, too.
We had a sort of similar controversy at my high school years ago, with rebel flags and FUBU (For Us By Us, “us” being black people) attire. I was so proud when my school board, for once, came down on the side of liberty and free expression, and let it all be worn!
Jayelle is completely right in my opinion.
Mike’s right – the school, workplaces, has a right to rule against dress and behavior that “created a negative and hostile working environment for others.” . I can’t imagine that hasn’t also been upheld in a court of law a few times over.
Kendall, Tinker v Des Moines is not the controlling precedent – this is a very different situation. There’s a long and prominent history of gays being subjected to hostile environments in schools. Protesting the Vietnam war isn’t a case of singling out for ridicule a historically abused group that obviously needs protection. It would have been a different story if there were historically abused soldiers at that school and the protestors were spreading the idea that soldiers are shameful.
At worst its a trivial inconvenience to Chase if he can’t be open about his hatred, but allowing him to express that hatred creates and reinforces a too long ignored environment of hostility that can cause major damage to same sex attracted people. We’re all morally obligated to put a stop to that and telling Chase he can’t encourage the continued malignment of a historically disadvantaged group is perfectly reasonable. I’m sure a court in Canada would agree, and I hope that’s true in the States too.
“Kendall, Tinker v Des Moines is not the controlling precedent – this is a very different situation. There’s a long and prominent history of gays being subjected to hostile environments in schools. Protesting the Vietnam war isn’t a case of singling out for ridicule a historically abused group that obviously needs protection. It would have been a different story if there were historically abused soldiers at that school and the protestors were spreading the idea that soldiers are shameful.”
I wasn’t aware that there was a “historically abused group” exception in the First Ammendment. Actually, the interesting thing here if you read Tinker, Iron Crosses (a Nazi symbol)were permitted at the school as were patriotic buttons. The only viewpoint discrimination was against anti-war protestors.
“We’re all morally obligated to put a stop to that and telling Chase he can’t encourage the continued malignment of a historically disadvantaged group is perfectly reasonable. I’m sure a court in Canada would agree, and I hope that’s true in the States too.”
Honestly, I hope not. We have hate groups everywhere in this country. I disagree with them all, I think they should be closely monitored by the government but as long as they follow our laws I don’t think they should be surpressed under any circumstances. There is absolutely no justification to abrogating Chase Harper’s free speech merely because I dislike the content of his speech any more than I think he or Alan Chambers or anyone has a right to say that GSAs should not meet in schools.
I really should make sure I have “remember me” selected
Kendal, no one’s suggesting that a mere dislike of speech is sufficient grounds to prevent it. I assume from your stance you’d have no problem with a student wearing a “Being black is shameful” T-shirt?
I’m completely lost as to your concern that hate groups’ speech not be suppressed under any circumstances. Beyond your abstract discomfort can you comprehend any specific real world scenario where it would be problematic if hate groups couldn’t encourage killing gays or blacks?
We have a law like that in Canada, just how do you think that’s negatively impacted this country in any real specific way? Can you think of any real world examples of how this is a problem?
Again, I’m not a legal expert, but it seems perfectly reasonable to me that disruptive expression ought to be banned in a school setting. Expressing hateful messages interferes with the other students’ right to learn, which is what the purpose of a school is. It’s not any different than if a student kept saying “Suck it!” to the teacher.
“Kendal, no one’s suggesting that a mere dislike of speech is sufficient grounds to prevent it. I assume from your stance you’d have no problem with a student wearing a “Being black is shameful” T-shirt?”
I’d find it offensive, especially in school. I’m sure a lot of kids would ostracize them if they wore a shirt like that. However as long as that was all they did? It might be constitutional.
See, its not about “my” view. If it were me and I was in Chase Harper’s class back in highschool I can’t say with 100% certainty it wouldn’t upset and anger me enough to attack him. I find the speech highly offensive. But I’m not sure its not protected speech, especially if an alternate viewpoint is allowed.
“Beyond your abstract discomfort can you comprehend any specific real world scenario where it would be problematic if hate groups couldn’t encourage killing gays or blacks?”
Of course. Exactly there. You cannot incite violence or a riot with your speech. That’s not what Chase Harper is accused of. he’s accused of wearing a t-shirt with the message “homosexuality is shameful.” Which is honestly simply a stupid message in my opinion. somehow an emotional response is “shameful” in his world. But beyond that he’s not calling for the murder of gays, he’s not saying anybody should be killed. He’s simply expressing a low opinion of people who happen to be gay (myself included).
“We have a law like that in Canada, just how do you think that’s negatively impacted this country in any real specific way? Can you think of any real world examples of how this is a problem?”
Its a domino effect. If you start supressing a religious perspective in one community the perspectives of other groups can begin to be cut off. For example, what if the district banned “gay is ok” t-shirts because that was offensive to Christian prinicples? Should that be acceptable?
It does trouble me that, in the name of civility, speech and dress codes may implicitly require bigots to prettify and sugar-coat beliefs that are inherently vulgar and immoral.
I once belonged to a dialogue project that, to a certain extent, required such self-prettification of both opposing sides. As a result, I failed to learn just how egotistical, politically correct, and sadistic some people were.
The formation of XGW was a direct reaction to that sort of prettification. So, if a new law required Fred Phelps to act pretty and be sweet, I would oppose that law — I want to know just how twisted someone really is.
On the other hand, I don’t want to be compelled to spend eight hours a day in a building with that uncensored individual, and perhaps required to work together on classroom or workplace projects with someone whose shirt says “Kill Fags and Jews.”
That’s not apparently what we have here though. This does not appear to be a call to violence or anything more (beyond the text itself) than a religious expression. again, we all that have responded here I think deeply disagree with it, but is he asking any other person to violate the law? is he calling for violence against anyone? It seems to me that all he’s doing is demeaning a particular group. Not asking that they be destroyed.
It would be different for example if he had a shirt that said “thank God for AIDS” because that is expressing joy at AIDS victims tragedy. It would also be different if he had a “Matthew Shepard is in Hell” t-shirt like the despicable “reverend” Phelps has on his website.
I don’t know. I kind of like the idea of an idiot being decent enough to fly his own idiot flag, should he so choose. I have enough faith in the other kids that they’ll receive the signal and leave him alone.
Then again, I work in a very liberal environment, but we wouldn’t allow that T-shirt in our office. It would shut productivity down. And it damn well could have a similar effect on LGBT kids and the kids who love LGBT people.
I don’t know. At my company, we’d also allow a discussion, and we allow all different beliefs. In cases like this, I’ll definitely err on the side of freedom of speech, but it’s hard. I consider the speech repulsive.
Incidentally, on your point about “compelled to spend time with…” I’m guessing a bigot would reply that they don’t want to spend time with people that openly profess their attraction to the same sex. Actually, I had 1-2 friends express just that view to me when I came out.
Of course there are fewere and fewer people willing to express that level of revulsion each year fortunately but they certainly remain a voice in public schools for now.
Kendall the problem with Chase’s speech was laid out in the first link that you posted – its injurious to others. It goes beyond being something people merely dislike, it injures. If I might crudely summarize the Canadian law, hate speech is illegal when it encourages actions that could lead to injury or death. No religious perspective is suppressed unless it specifically calls for injuring or killing others. “Gay is OK” t-shirts might be offensive to Christians and so might the national day of silence, but that speech does not call for harming or murdering Christians or heterosexuals, nor does it create an environment that is hostile to them – “Gay is OK” speech is acceptable and legal in Canada as it should be in the U.S.
Chase’s T-shirt creates a hostile environment that is injurious to others, Calling it nothing more than a religious expression demeans religion and denies the connection between condemning gays and treating them badly. In pre-war Germany they began by speaking badly of Jews long before they directly called for their death. Surely religion means something more than saying homosexuality is shameful – that its wrong to be gay didn’t even make the Christian top ten list. The idea that this is free expression of an important religious theme is farcical.
I’m not the only one to link the killing of gays to that kind of environment created by statements like Chad Harper’s “Homosexuality is shameful”. Perhaps some of the comments on this link explain it better than I have:
http://www.exgaywatch.com/blog/archives/2006/04/randy_thomas_de_1.html#comments
Randi, I’m gay. I know how painful Chase’s T-shirt would be. I’m not ashamed of my sexuality nor do I back away from it. I know what you’re trying to say. I agree with you there is a culture of discrimination already in our nation’s public schools and people like Chase Harper don’t exactly help make things easier. I’m not some bigot who doesn’t understand these things. Nor am I a Stephen Bennet type (assuming he really was gay at some point) claiming I’m “completely heterosexual” nor a celibate gay man or a right-winger or opposed to homosexuality in any way. My boyfriend won’t let me be.
But Chase Harper is NOT inciting people to riot or murder or do any sort of harm. He isn’t (apparently, who knows for sure) screaming his anti-gay views, I’m guessing however that people do know his perspective, he seems to be quite willing to “share” his view of human sexuality. All your talk of “hostile environments” towards gays… I’m reasonably sure Chase Harper would make the same point towards Christians. he has to sit there with people wearing rainbow t-shirts, talking about being gay, etc (yes, I know, a pathetic list, I’m not trying to defend him, just his right to speak) and be exposed to what he sees as the “homosexual lifestyle” (my least favorite term) so I think from his perspective the environment in the schools is pretty hostile to his perspective as well. afterall, his is the one that got silenced.
In summary, please don’t assume I don’t understand what its like to be gay and hurt by an anti-gay perspective, I know all too well. But that doesn’t mean it needs silence.
oh, another thing, just for the record? I’m an atheist. Just figured you should know that.
Would like to add, I’ve been fired from jobs for being bi, and when we were 18, the beautiful girl who would become my wife was gay-bashed. It was horrible. Her short-term memory still isn’t what it was. I know how it feels, too.
And I want to be very careful not to repress anyone else.
Jayelle – I’m sorry you and your wife were mistreated, I think bigotry and intolerance of that sort is totally unacceptable. I condemn violence in all forms, its simply not right to assault someone just because they’re different than you.
Kendall, I am aware that you are gay and you find Chase’s expression offensive. I’m not suggesting you haven’t had the experience of being oppressed.
However people wearing rainbow T-shirts and talking about being gay does not demean nor create a hostile environment for Christians or heterosexuals. Hostility to his anti-gay message is not hostility to him or his religion in general. Rejecting the message does not reject the messenger. The essence of Christianity is not “Homosexuality is shameful”.
Chase is not his anti-gay message in at all the same way a gay person IS their same sex attraction. In no way can you compare his “need” to make anti-gay statements equal to the need of gays to be free from such messages. He will not suffer greatly by being deprived of the ability to demean others. Gays do suffer greatly when they are deprived of the right to relax enough to be themselves because of the speech of people like Chase. He is injuring with his message, he is not injured by being prevented from injuring others.
As someone who works in school, I don’t have a problem with Chase’s shirt. I think most people would see him as stupid and bigoted. Some people may feel uncomfortable, but I believe it is okay to be offended and offend. I suspect many people will just think he is a closeted homosexual.
Now, I would possibly, as an instructor, suggest to Chase that it may affect others around him and make it difficult to work with others, but I would leave that up to him. I once was wearing a shirt that said “I love Satan” with a big heart. I was not working at the time, but a fellow employee saw me with the shirt outside of school and became very upset. Of course, the shirt was a joke and expressed my libertarian spirit. The person complained that I was representing the school, and so I was badly representing. I asked the school and complainer if they would be upset if it said “I love Jesus.” They said that it was acceptable because it was a legitimate sentiment. Such commentary is offensive to me. I support Chase, and I think we should thank him for protecting our rights as gay people to have free speech.
“However people wearing rainbow T-shirts and talking about being gay does not demean nor create a hostile environment for Christians or heterosexuals.”
I think part of that depends on how you’re raised. Certainly I have many straight friends that were raised in a tolerant environment. For others the mere expression of anything to do with homosexuality of any sort has a very high “ick” factor. That’s why some people react so inappropriately violent towards gays, hatred is a learned behavior and with it comes a variety of idiosynccracies including a lack of ability to tolerate anything to do with “gay is ok” as a philosophy.
“Hostility to his anti-gay message is not hostility to him or his religion in general. Rejecting the message does not reject the messenger. The essence of Christianity is not “Homosexuality is shameful”.”
I agree with you on all your points. Unfortunately that’s not how people like Chase think. You’re thinking like a well adjusted, comfortable gay person. Try to see the world from Chase’s perspective. His freedom to believe is based on a freedom to “witness” and “share the truth” about homosexuality as he sees it. Anything that detracts from that ability is seen as ignorant and close minded. Currently the US has a broader definition of what is speech and a broader respect to being “content neutral” in regards to speech than Canada does.
HmmmI think it is unproductive to debate this on First Ammendment, “Free Speach”, grounds alone. It’s well recognised that the First does not permit any and all speech in any and all places. The school environment particularly so given the compulsory attendance and the purposes of education (one of which was noted as “the inculcation of fundamental values necessary to the maintenance of a democratic political system”).Kendall — not picking on you, but simply because you’ve taken a largely opposite view
— you did note some circumstances where you would curtail speech at school. So you’re not opposed to doing that per se? But you did make a rather odd comment: “You cannot incite violence or a riot with your speech.”Actually, that’s exactly what incitement is. Speech. Alone.More the point, the decision recognised that in the school setting speech may be curtailed when it may be reasonably assumed to not only eventually result in “violence or riot” but also the degradation of individual students in ways that may psycologically harm them or have them feel excluded or unwelcomed members of the school. Harper (or rather, the ADF) had argued that only a concern about physical violence was valid — the majority rejected that. The dissent didn’t seem to wish to find on that issue itself, instead preferring to nit-pick and dismiss the quick evidence of harm offered by the majority.The preemptive nature of the actions of the school are also valid. The situation had escalted to violence in the previous year, resulting from the action of those opposed to Day of Silence rather than the activity itself. The Powys district had also been found wanting with the abusive environment around gay students in a previous case.A teacher would be failing in their job if they failed to anticapte where an emerging conflict could lead, and they must step in when they can reasonably anticipate that the purpose of the school system will be thwarted or if the next step would be violence etc. I think they behaved gently and reasonably in the circumstances, seeking only to remove the specific concern and not broadly punishing the student involved (let alone attempting to change his actual viewpoint).The majority judgement also noted that the broad objectives of the Day of Silence could not be curtailed without running into the First (probably, that was untested, although the dissent rather oddly offered the complete banning of everything as the “solution” to a Free Speech case!).This is so particulalrly as such activity does not run counter to the broad objectives and purpose of the school system (equal opportunity to education for all, being one). Such speech is permitted as it seeks to extend rather thwart the educational environment. This was not the case with Harper’s T-shirt. The fact that he has an anti-gay viewpoint is neither here nor there, nor is the fact he claims a religious exemption for his behaviour.Anywoo, quotes of note for me: all adding up to “Hello PFOX… and GOODBYE”.Sorry about the length, but they more generally inform a great deal of discussion here at XGW etc.
And, just for balance and tolerance
, one from the dissenting judge:
Excuse me???… What on earth does he imagine “The Day of Truth” and the ADF are all about?
Oh, sorry ladies and gentlemen. If would help if you had the links (both in pdf).The Majority.The Minority.
We have been shamed enough in our lives without having some twit wear a T-Shirt to school trying to advance his homophobic agenda. Can you imagine a kid wearing a T-shirt to school that said “Being A Black Person is Shameful”? Or how about “Feminism” is shameful? or something like that? It is this religious hate speech that creates more intense bigotry and finally all too often ends in discrimination and sometimes in violence.
Free Speech is fine as long as it does not create a violent atmosphere on campus. Hopefully this kid will be shamed and shunned by enough other students because of his bigoted t-shirt that he’ll get the message and get to know gay people and really learn how to be a real Christian who shuns blind intolerance and who loves diversity in all of God’s children. What he is doing is not helping this world but harming GLBT people and their families and friends as well.
Perhaps his being able to wear this T-shirt because of the freedom of speech will eventually be a catalyst in people being more aware of how gays and lesbians are harmed. Perhaps Chase will learn as people begin to ignore him and pity him that he’ll get sick and tired of trying to preach his venom and learn that loving people is far more productive than spewing hate.
Ben and Grantdale, I completely respect your viewpoints, and I do suspect that the school is not seen as a place for free public speech. I mean, as a teacher, I cannot say something that is dangerous or blatently false in front of the classroom. If a student had a racist, sexist, or homophobic t-shirt, I would not stop them from waering it. I would take the student aside and explain audience. However, when you tell someone their clothing is a appropriate, I suspect that makes it worse in the end. Other students will start to feel their need to press stuff. I truly believe that progress will come from openness. Chase probably feels persecuted right now and will never learn, but if dialogue happened, maybe he would change his mind. Maybe I am just too much of a libertarian. Tell me to go to hell and I will gladly stand proudly and say, “yes, I will.” Freedom is everything to me even if not politically correct.
Oh, that’s OK. People tell me to go to Hell all the time. Other’s tell me I’m going Hell.(Which is fine. I’ve never been to Norway. Everyone says it’s quite scenic, if a little on the chilly and rainy side.)Generally I think it is a bad idea to refuse to allow certain ideas into the classroom (some are beyond the pale). But it’s also a bad idea to refuse to prevent ways that the ideas could be “discussed”. Hardly seems any point if it turns into a slanging match, and that’s a bad place to put a minority. The judges comments about not putting individual students into a position of having to defend their very self or justify their existence made a lot of sense to me.I’d feel the same way if it was Harper being subjected to the same type of abuse over, say, his religious beliefs or how important they are to him. Or the fact he’s white and blonde. /sarc
Aaron said, “Chase probably feels persecuted right now and will never learn, but if dialogue happened, maybe he would change his mind.”
Chase is part of a religious movement in which the meme of “religious persecution” is alive and well. He’ll probably never get past the feeling of being persecuted, regardless of dialogue, because anything that does not facilitate his bigotry will always be seen as persecution. Instead, all we can do as a society is break that meme by refusing to give it validity.
grantdale –
First, I have in the past greatly admired your postings at exgaywatch, I’ve been a lurker for a while and I think you do very good (same is true of all the other posters).
With that said – of course. Incitement is speech, alone. I’m essentially talking about the “fire in a crowded theatre” principle, where shouting that falsely is going to cause a panic unnecessarily and in such tight quarters may result in unnecessary deaths.
I think it would also be a problem is Chase Harper’s shirt said “one bullet, one gay, one less problem” or some other violent message calling for action against gays that is directly harmful.
One person’s right to speak ends where it is asking for harm to be committed agaisnt another or done for the sole purpose of causing a panic.
In schools its a slightly different standard however. In schools the standard is “material and substantial disruption.” so if Chase Harper got up in every class where a student was silently wearing a DoS t-shirt and walked over and started preaching “the truth” to him or her THAT is disrupting a student’s ability to function in the classroom.
I think we all need to keep in mind there is no first ammendment right not to be offended.
I think we all need to keep in mind there is no first ammendment right not to be offended.Just as well too — we’d all be dead!
I’ve just looked back, and it isn’t clear that the entire post isn’t meant to be “at” you. Sorry if it came across that way. There was only one part, asking if it was a matter of degree. The rest just followed on –not connected.Personally we’d draw the line well before you would (it seems). The act need not be repeated, but be hostile from the outset. That would be enough for “material and substantial”, but you may be teaching in an area with different expectations — don’t know, but I’m sure I wouldn’t want to be questioned about why I didn’t stop the problem at the start.One thing comes to mind, though. How would you tackle it if it was 10 or 20 such people who took turns picking on an individual?I’m imaging a situation that would cause “material and substantial” educational, and even personal, harm to the individual who is picked on; but also one in which no individual could be disciplined (if I’m following what you’re saying.) Or am I gettig it all arse about?
I guess I don’t see opinions as a problem generally where they’re non violent. The t-shirt says “homosexuality is shameful” and provides a cite for a Bible verse. On the front it says that he doesn’t support “what god has condemned.” To me he’s expressing a religous opinion as he has a right to do (students cannot be forced to pray in school or endorse a religion, students may express a religious position but the school for example does not have to display religious work).
If he quoted Leviticus for example and said that homosexuals should be put to death that might be strongly disruptive. What if someone had a t-shirt that said “Drunk drivers deserve what they get. Their victims don’t” and it was offensive to a student whose parent died while driving drunk? Its an insensitive message and a considerate person wouldn’t wear the shirt perhaps.
But again, students want to have the right to have a Day of Silence, and I think that’s fine. I just think alternative perspectives shouldn’t be prohibitted either.
I don’t think picking on a single individual is or should be protected speech in school. Focusing on one person disrupts the educational process. However, expressing a negative opinion of homosexuality has essentially the same effect of disrupting the educational process as expressing a positive view of homosexuality and a negative view of homophobia. It stimulates discussion which can certainly be good for the classroom, but it also lets people be more free with their beliefs.
Consider that the school that banned Chase Harper from wearing that shirt is essentially saying that they only support pro-gay messages and that they don’t allow students to express any message that does not fit in with that belief system. Such supression has a chilling effect on understanding and tolerance and creates closetted bigotry.
Schools are open “public forums” in regards to speech. A teacher can stop students from attacking other students individually “John Smith is a FAGGOT” would be an example of unprotected speech, but students are free to protest and free to hold and express political or religious opinions, especially when one view is allowed. Frankly, either Chase Harper should be allowed to wear his T-shirt or the DoS should be banned as well. Its simply not right to only allow one perspective, one voice into a debate that at some level (whatever we feel, whatever we think, whatever we believe) is fundamentally based on opinion.
This is different than say an “evolution vs Creationism” debate for a couple reasons. First, Evolution is widely accepted and acknowledged within the Science community. Its the basis of biology. Creationism might have a place in a philosophy class or in a comparative religion class, or even a “opposing viewpoints in science” class (one of which I took in highschool) but there’s no basis for that being on an equal footing with evolution because its untestable, and therefore unscientific.
Pro-gay vs Anti-gay views however are not fact based, they’re value-based. Anti-gay values cannot legally be held to be of less worth than pro-gay values just because they offend some people. Almost any value-based viewpoint is going to hurt SOMEONE because its based on values that are different than other peoples.
As most will acknowledge, I am firmly in favor of US First Amendment style protections on speech. I don’t think the state can start curtailing that freedom at all without opening the door to unacceptable violations of fundamental rights of expression. I also believe that “yelling fire in a crowded theater” mess is also garbage (Schenck v. United States). It originated with a case that was used to uphold the abridgment of a citizen’s right to dispense fliers opposing the draft in WWI of all things – can you imagine the reaction to such today? It was also overturned decades ago so I don’t know why we still quote it. I realize some places make certain categories of speech illegal, calling it “hate speech” or whatever, and I frankly think that is appalling.
That said, I don’t know that the same protections have ever applied in a compulsory education environment, nor am I at all sure they should. School authorities are free to limit speech and other forms of expression to maintain a safe environment conducive to learning. With that in mind, I seriously doubt Chase will prevail in this case. I hasten to add that the school could just as easily restrict a shirt which said “Gay is wonderful” or whatever. Many, many US schools have gone back to requiring that students wear uniforms, partly to avoid this issue. Not a bad idea in my estimation, for other reasons as well.
David
David – The same protections DO in fact apply in schools to political speech – so long as the speech does not “materially and substantially” distract from the educational environment. A t-shirt is generally not disrupitive because students are free to acknowledge or ignore a t-shirt.
I think this passage in Tinker v. Des Moines is just as relevant if more indirect than the passage I quoted in an earlier post:
Jayelle said “Seems to me the fellow students whom he’s trying to insult and shame have the right to wear “Homophobia is Shameful” shirts, too.”.
Let’s be realistic here. I can’t believe that things have changed so much since my day that if some effeminate student showed up at school with a “Heterosexuality is shameful” T-shirt he’d get the living crap beat out of him. Suggesting gays have the equal right to offend is far from reality and as we’ve seen with affirmative action programs sometimes to make things equal we have to address a historic wrong by enforcing an equal environment. In this case by preventing the speech that creates and re-inforces the inequality and harm.
Boo said “Expressing hateful messages interferes with the other students’ right to learn, which is what the purpose of a school is. It’s not any different than if a student kept saying “Suck it!” to the teacher.”.
Boo is absolutely right and none of you favouring Chase’s right to injure others with his speech have addressed that. How is it okay for a teacher to not allow him/herself to be demeaned but not okay to prevent gay or other students from being demeaned?
Posted by: Aaron at April 21, 2006 01:10 AM
Once again Aaron, the statement “I love Satan” is not a direct demeaning rejection of anyone or a core aspect of themselves. “Homosexuality is shameful” is a direct rejection of a core aspect of some people’s personality. Religious choices, especially choices involving minority aspects of a religion, are in no way a comparable and protected core of a person’s being.
Posted by: Kendall at April 21, 2006 01:24 AM
Just because people have a high “ick” factor when it comes to gays doesn’t give them the right to injure others with hostile speech by re-inforcing the idea that gays are nothing but “icky”. We wouldn’t tolerate someone in school teaching others Blacks or Jews are icky – this kind of indicates the very need for education in tolerance via day of silence, etc.
You also said Chase’s “freedom to believe is based on a freedom to “witness” and “share the truth” about homosexuality as he sees it. Anything that detracts from that ability is seen as ignorant and close minded.”
Homosexuality occupies a tiny tiny percentage of the bible. To say his freedom to believe in general hinges on his freedom to believe in disparaging others in an injurious way is a gross exageration on the impact on his freedom. Taking away his “religious freedom” to hurt others leaves him free to believe 99.9 % of the bible, no I take that back, it leaves him free to believe ANYTHING he wants to. Preventing him from injuring others by publicly stating his injurious beliefs does not impact his ability to believe in the slightest. Its time religious conservatives stopped equating the freedom to speak about their religion in general with the freedom to condemn gays – it is not even remotely the same thing and it is exactly the reason why LGBTs like me despise religion because that is the SOLE thing it has become to us due to misleading summary statements like yours supporting Chase. Religious free speech is NOT summed up by the need to condemn gays. To say “Homosexuality is shameful” is to condemn others for having same sex attractions they can do nothing about. Condemning the freely chosen speech of Chase is not at all the same thing. Society means compromise and there’s no way Chase can have the completely uninhibited right to say whatever he pleases whether he tries to trojan horse it as a religious belief or not.
I agree no one has a right not to be offended here, but I’m not talking about offense, I’m talking about injury. The idea that “Homosexuality is shameful” has been and to large degree still is pervasive and it is exactly that kind of environment of disdain that has lead to the psychological and physical injury of many LBGTs including myself and probably you and others supporting Chases uninhibited free speech. As Grantdales post noted at length, this is a perfectly reasonable restriction.
Kendall I don’t agree with your statement “However, expressing a negative opinion of homosexuality has essentially the same effect of disrupting the educational process as expressing a positive view of homosexuality and a negative view of homophobia.”. Expressing a negative opinion of gays because they are same sex attracted is a major hurtful rejection of the core of a person. A positive expression of gays does not reject nor harm the core of a religious person like chase. There is no comparison.
I also disagree with your statment “Consider that the school that banned Chase Harper from wearing that shirt is essentially saying that they only support pro-gay messages and that they don’t allow students to express any message that does not fit in with that belief system.”
Not at all true. The school is saying we don’t allow a message that injures others – you are not allowed to express any message that substantially harms others and if you’re saying I haven’t been substantially psychologically harmed by messages like Chase’s “Homosexuality is shameful” message please email me and I’ll tell you what I really think. randi.schimnosky@sasktel.net
“Gay is ok” is not a belief system in the same comprehensive way that a religion is a belief system and you can’t say one equals the other. The message behind “Gay is ok” is that its wrong to demean and substantially pyschologically harm others.
Kendall you said “A teacher can stop students from attacking other students individually “John Smith is a FAGGOT” would be an example of unprotected speech,”.
Why would you say that when as you said earlier any statement that is not a direct call to violence should be tolerated? If its wrong to demean students individually how is it okay to demean them as a group? If its okay to say “homosexuality is shameful” why would it be wrong to perhaps state a fact and say “John Smith is a faggot” – you said these are all just value judgements that should be allowed?
Finally I disagree with your statement “Pro-gay vs Anti-gay views however are not fact based, they’re value-based. Anti-gay values cannot legally be held to be of less worth than pro-gay values just because they offend some people.”
In fact this court did make a preliminary legal judgement that at least temporarily that the anti-gay values that substantially injure others are of less worth, not because they simply offend, but because they go on and injure. If you’re saying they don’t substantially injure, you email me and let me tell you personally and directly my experience. Do you honestly think that the statements like Chases’ have nothing to do with Jayelle getting fired from her job, or her partner getting gay-bashed?!?
Randi –
While I can’t speak for Jayelle the way I took her point was that the best counter for SPEECH (which a t-shirt is) is more speech. Its not about a “right to offend” its about the right to express a perspective regardless of whether it is offensive to a group whether that group is gay or black or jewish or hispanic or asian or christian or hindu or muslim or zoroastrian or any other grouping you care to think of in this country. I’m not certain how it is in Canada but in this country groups like the KKK are allowed to march, are allowed to advertise (yes, even in public schools) and are allowed to function. I can’t imagine very many people take them seriously but they’re there and they’re out there speaking. And although I can’t say I follow their activities particularly closely I’m reasonably sure for every demonstration they hold there are counter demonstrations. That’s all Chase Harper allegedly tried to do.
That’s only true if you believe (as I do and Chase Harper quite apparently doesn’t) that homosexuality is innate and at least strongly influenced by genetic factors. Chase Harper honestly, really does seem to believe its a choice and he’s trying to save people. So to Chase his speech is NOT attacking a person’s core identity, he’s attacking someone’s choice in life. (as if you can choose who you fall in love with…)
Hi Everybody!
Wow…I’m impressed with this thread. Kendall, you are very interesting and smart and brave for arguing the opposing point of view.
But as Randi is pointing out in her threads, what this Chase kid is doing is furthering a belief that has historically and traditionally been harmful to gay people ALONE.
And his expression was specifically on a day set aside so that gay children and their supporters could speak for THEMSELVES and make their fellow students aware of the historical and traditional tragedies that were caused by the speech that Chase espouses.
The Alliance Defense Fund, says that they defend the rights of Christians.
But their most prominent cases involved anti gay speech, and it’s consequences.
A Christian like Chase, specifically wants gay young people to never be honest or protected in just identifying themselves as gay, or imparting the history of gay people.
Our laws cannot and should not police gay people or compromise their ability to be themselves without restrictions.
Christians are a protected class, and their religious identity is chosen and studied.
Gay identity is not, and in an educational setting it is NECESSARY for gay kids be able to express this….and not be confronted with a belief that they are shameful people who deserve their shame and should expect it from others.
Chase is determining, with his expression, that his gay peers are as unworthy, unclean and a bad presence in the school, and everywhere.
It’s a belief, and essentially untrue. But a lot of people don’t know that and don’t believe it.
For him, he doesn’t HAVE to say what he does. It won’t harm him physically or emotionally or educationally not to.
However, what HE does, will possibly do that to a gay young person.
Schools are also in the business of protecting EACH student.
Gay students are in fact violated or are at risk of it by the things Chase is saying.
He is setting up his gay peers with his expression to have a specific result.
He’s not saying: adulterers are shameful. Thieves are shameful. Bullies are shameful or lying is shameful.
No.
He’s directing his speech at a group that is the target of much harm because he’d prefer MORE harm come to that group at worst.
Or disappear at best.
And gay kids are not demanding that of HIM, or HIS identity, now are they?
Sorry Kendall, you’re right that the Constitution doesn’t protect gay people from speech like this.
And being protected from the RESULTS of this speech are barely there at all.
The problem here is, gay kids don’t yet have the freedom to BE who THEY are, without serious repurcussions. Their identity and free movement ISN’T protected enough from Chase’s expression and the ADF’s agenda to silence gay people.
Christians can be themselves and have free association in ways only dreamed of by gay kids.
This is a matter of the ADF and Chase using a protection they don’t want for gay people in particular.
And in our diverse society, they have to learn how to treat others as they expect to be treated, regardless of what they think of them.
Kendall said, “That’s only true if you believe (as I do and Chase Harper quite apparently doesn’t) that homosexuality is innate and at least strongly influenced by genetic factors. Chase Harper honestly, really does seem to believe its a choice and he’s trying to save people. So to Chase his speech is NOT attacking a person’s core identity, he’s attacking someone’s choice in life.”
So correct me if I’m wrong here, Kendall, but you seem to be saying that because Chase is sincere in his beliefs, that gives his bad behavior a pass. That sounds pretty faulty to me. After all, people in the KKK are pretty sincere in their beliefs concerning the inferiority of people of color. Are we to give them a pass to engage in actions that hurt others simply because their intentions are good?
Regardless of Chase’s sincere beliefs, his actions are damaging and hurtful, and it is attacking a person’s core identity. His good intentions does not change that, and shouldn’t warrant him a pass.
I think what I meant to say was, you’re right Kendall, that the Constitution can’t do anything for past historical wrongs, at least that have already been committed.
But perpetuating continued wrongs against a non criminal group yet to realize their full identity and potential as full citizens, is the responsbility of the Constitution.
Historically, Christians have had a lot of power and freedom.
Now has come a time when they are wielding it heavily against ONLY gay people, and expectations that gay people return to a more brutal time when their silence was bought by religious intimidation, regardless of whether gay people or the public at large shared that belief.
Chase is a generation that will have to understand that his responsibility lies in understanding what he wants his free speech to do and if he’s ready to live with the consequences of it.
Cleary he doesn’t think there ARE any consequences for HIM, just gay people.
Now that he’s learning otherwise, he and the ADF are finding out the limits of their belief in a secular and diverse culture that has to foster getting along with those different from yourself.
And the school has an obligation to teach him about those different from himself and his civic responsibility, whether he likes it or not.
Kendall said:
David – The same protections DO in fact apply in schools to political speech – so long as the speech does not “materially and substantially” distract from the educational environment. A t-shirt is generally not disrupitive because students are free to acknowledge or ignore a t-shirt.
I would certainly challenge that last sentence, particularly in the atmosphere of a Jr. or Sr. High School. What’s written on a T-Shirt most definitely could be disruptive there. A senior was killed here the other day over a longstanding argument about which was better, Ford or Chevrolet. And the students are generally not free to remove themselves from association – they have to be there.
As for Tinker v. Des Moines, I think that is a little different. Saying that those arm bands were disruptive was a stretch – they were mostly being preemptive which is understandable considering the time (middle of the Vietnam Conflict). Protests were turning violent very quickly in those days. I probably still would have sided with the District Court on that one (in favor of the school). The kids were free to wear the arm bands at any other time, just not at school; same with the T-Shirts.
Most such cases, including all the others cited in your post, involve College level institutions. Public school is compulsory and involves minors who do not enjoy a full set of rights under the law. Speech can be censored there, not just for whim but for reasonably just cause. Protecting a civil, safe atmosphere at school is certainly just cause to me.
David