The federal Ninth Circuit Court of Appeals silenced one group of students in a national debate last week in a surprising, and arguably unconstitutional, opinion. The case involved Poway High School, near San Diego, which promoted a “Day of Silence” to teach tolerance, “particularly of those of a different sexual orientation.” But the school went a step further and prohibited dissenting students from wearing t-shirts opposing homosexuality.
The court held that students expressing their views against homosexuality were not protected under the First Amendment. It reasoned that anti-homosexual messages were not protected because the messages caused “psychological injury” and lowered the self-esteem of other students.
The Supreme Court has long upheld the rights of students to speak during school hours on issues of national debate. In 1969, the Court supported the right of students to express their views about the Vietnam War by wearing black armbands. Given the prominent national debate over gay rights, more speech, not less, should be welcome.
Dissenting Judge Kozinski warned about the danger of this precedent ’" precedent that applies to Arizona. Thought-provoking, controversial messages should be protected under the Constitution, no matter which side of a controversy they are on. Government should never be allowed to favor one side of a debate while silencing the other.
Benjamin Barr is a constitutional policy analyst with the Goldwater Institute Center for Constitutional Studies.