Posted on March 16, 2011

First Amendment Exception for “Racially Hostile or Contemptuous Speech”

Eugene Volokh, Volokh Conspiracy (blog), March 14, 2011 12:00 pm

As I blogged a few months ago, a two-judge majority on a Sixth Circuit panel held in Defoe v. Spiva that there was such an exception; to quote the panel,

A public high school that can put reasonable limits on drug-related speech by students [referring to Morse v. Frederick, which upheld such restrictions –EV] can put reasonable and even-handed limits on racially hostile or contemptuous speech, without having to show that such speech will result in disturbances. Expressions of racial hostility can be controlled in the public schools even if students in the attacked racial group happen to be mature, goodnatured, and slow to react. Schools are places of learning and not cauldrons for racial conflict. Moreover, expression of racial hostility can be controlled in the public schools even though such expressions are constitutionally permitted in newspapers, public parks, and on the street. Public school students cannot simply decide not to go to school.

Of course, under Tinker v. Des Moines Indep. School. Dist (1969), all student speech–whether racially offensive or not–could be restricted if there is substantial reason to think that the speech will likely cause a material disruption. But the panel majority here concluded that “racially hostile or contemptuous speech,” including the display of a confederate flag, can be punished even without such a showing of likely disruption.


And the wearing of a confederate flag does send a political message, and certainly a comment on a “political or social issue”–whether the message is that the Confederacy was right to secede, that the South should be proud of its Confederate heritage, or that white supremacy is a good idea. The intended and likely understood message may vary from context to context, but the message remains political.

Unfortunately, the Sixth Circuit just rejected a petition for rehearing en banc, over a dissent by Judge Boggs; here are the opening paragraphs of that dissent:

The panel majority eviscerates the core holding of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)–that student speech can be suppressed only based on its disruptive potential, not on its content. There is no indication in Tinker that its rules are any different if the speech at issue is deemed, by either a school or an appellate court, to be offensive, “hostile,” or “contemptuous.” See Defoe v. Spiva, 625 F.3d 324, 338 (6th Cir. 2010). Nor is there any indication that such a judgment would change the basic First Amendment values that Tinker enshrines.

The panel majority rests its remarkable conclusion on Morse v. Frederick, 551 U.S. 393 (2007), where the Court found the speech in question–a 14-foot banner with the message “BONG HiTS 4 JESUS”–to be promoting illegal drug use. {snip}

[The] majority opinion asserts that this case is controlled by Morse because “racially hostile or contemptuous” can be substituted for “illegal drug use.” Defoe, 625 F.3d at 338–39 (“If we substitute ‘racial conflict’ or ‘racial hostility’ for ‘drug abuse,’ the analysis in Morse is practically on all fours with this case.”). That is grammatically true, but it is equally true if you substitute “religious dogma,” “Republican propaganda,” or “seditious libel.” Morse does not authorize suppression on any of those grounds either, but the panel’s ipse dixit reading of Morse would support such a holding just as strongly as the one it makes.