Lame Excuse for Restricting Speech

Sometimes an excuse for something is worse than the action itself. That’s true of a recent court ruling rejecting a teenager’s First Amendment challenge to his school’s discipline for wearing a T-shirt.

Tyler Harper attended a gay-friendly high school that celebrated gay pride and had a support group (the Gay-Straight Alliance) for gay students. To express a dissenting view, Harper wore a T-shirt that said “Homosexuality is Shameful.”

Rather than admit that he simply didn’t like the archaic message sent by this T-shirt, federal district judge John Houston rejected Harper’s First Amendment argument by claiming that “the phrase ‘Homosexuality is shameful’ is . . . emotionally and psychologically damaging to, homosexual students and students in the midst of developing their sexual orientation” and constitutes sexual-orientation “harassment.”

The judge cited no evidence at all that exposure to a message — a single message not even aimed at any specific individual — would “psychologically damage” a student. There is no evidence that gay students have unusually fragile psyches, or that the student’s message singlehandedly offset his school’s far more pervasive gay-pride message.

If the government can ban dissenting speech on the theory that one instance of it will “psychologically damage” anyone who is offended by it, then there will be very little left of free speech. While the Supreme Court has given schools broad power to restrict speech on some subjects, I do not think that its rulings allow schools to ban religious or political speech, or other speech on public issues, simply based on speculative claims that it will “psychologically damage” students, as I explain in this law review article.

As free-speech litigator David French noted last year, colleges typically justify just about any speech restriction on the grounds that the speech they seek to ban will somehow harm students or encourage them to behave in unhealthy ways.

The judge’s ruling in Harper v. Poway Unified School District was similar to an earlier ruling issued by the Ninth Circuit Court of Appeals in the case, which the Supreme Court vacated last year, depriving it of precedential value.

A law professor and First Amendment expert criticized the dangerous implications of that decision, explaining how its logic could lead to the suppression of a vast array of speech on controversial issues having nothing to do with gay rights. OpinionJournal discussed the issue here, in a post which quotes from my own prior discussion of the issue.