Brandon Hensler of the American Civil Liberties Union recently posted an article on the A.C.L.U. Blog of Rights reporting that the Florida chapter has filed a federal lawsuit on behalf of public school students who wore tee-shirts to school and to a football game stating "Islam is of the Devil." Do public school students have a constitutional right to insult other people's religions in this manner?
Hensler reports that a group of public school students who were members of the Dove World Outreach Center, a Christian church in Gainesville, Florida wore message shirts to their schools (elementary through high school) celebrating their own faith and denigrating another one. On the front of the shirt were two positive messages: "Jesus answered 'I am the way and the truth and the life; no one goes to the Father except through me; and 'I stand with Dove World Outreach Center." On the back of the shirt was the message "Islam is of the Devil."
In Hensler's opinion,
While school officials have a responsibility to both protect students and ensure that all students are able to pursue their education free of disruption, harassment, discrimination and intimidation, they failed here by banning free speech. Regardless of the offensive nature of the message on the shirts, it is protected speech.
I disagree. I think that the A.C.L.U. has made a mistake in this case, and it is a mistake that this fine organization characteristically makes. The A.C.L.U. often overlooks the fact that in freedom of speeech cases context matters. The A.C.L.U. seems to believe that if a person has the constitutional right to make a certain statement in one setting, that therefore he or she has the right to make that same statement at all times, in all places, and in any manner.
For example, people who are opposed to abortion have the right to march and demonstrate and advocate their beliefs, even at abortion clinics so long as they do not harrass or intimidate patients or staff. But they do not have the right to demonstrate outside a doctor's home. See Frisby v. Schultz (1988).
Similarly, members of the Ku Klux Klan have a constitutional right to burn a cross at a private meeting or a political rally. But they do not have the right to burn a cross across the street from an African-American family's home. See Virginia v. Black (2003)
A politician or a sidewalk preacher has the right to use racial and religious insults like "n____r" or "k__e" in a speech to the general public, but if a person says these same words directly to the face of a black or jewish person the speaker may be arrested for disturbing the peace. See Chaplinsky v. New Hampshire (1942).
Context matters! Words or symbols may be wholly protected under the First Amendment in one setting but may be banned or even made unlawful in another.
These kinds of cases frequently arise in educational settings or at work because students and employees have no way of avoiding these offensive messages – we are required to attend school and go to work. And, to some extent, we have to get along with our fellow students and fellow employees. It is not at all unreasonable for public schools or employers to require students and workers to treat each other with respect or at least to leave each other alone. It is not possible to draw the line between permissible comment and offensive speech with precision – but it seems quite clear to me that "Islam is of the devil" crosses the line, and that no public school student or employee should be subjected to these kinds of messages.
Private schools and private employers, of course, are not subject to First Amendment constraints, and in the absence of civil rights laws they could, if they chose, impose all sorts of limitations on freedom of speech and religion. Civil rights laws do in fact require employers to make "reasonable accommodations" for their employees' religious exercise. But under these same laws employers must not permit their employees to create a "hostile environment" for other workers.
A preacher at the pulpit or a politician on the stump or a citizen in public discourse has the perfect right to say "Islam is of the Devil." This message could be broadcast on the airwaves or placed on a billboard. These opinions may also be shared privately with other students or employees who are not offended. But, in my opinion, this does not give anyone the right to broadcast that message to all of their fellow students or employees.
{ 10 comments… read them below or add one }
You say "This message could be broadcast on the airwaves or placed on a billboard."
You then say: "…this does not give anyone the right to broadcast that message to all of their fellow students or employee."
Billboards are non-discriminating broadcasts. Anyone driving down the road will likely see the message. It is not censored at all. Please differentiate billboards from t-shirts, as they seem quite the same to me or perhaps less invasive as the message is smaller and will likely be seen by fewer people.
Your are right in noting that a television broadcast or a billboard or the internet or even a lawn sign has the potential to reach far more people than a tee shirt worn at school or a poster that I hang in a conspicuous place at work. However, there are several reasons why freedom of speech is more limited at work or at school than it is in a book or on the internet. First, both employers and schools are institutions that have important purposes – producing products and services or facilitating learning. If a student in my classroom is using foul language or making lewd comments or using ethnic slurs or saying that someone else's religion is a "gutter religion" – or wears a tee shirt that is stating the same thing to other students – I have a right and sometimes even a duty to cut that student off or remove him or her from the classroom. Or let's say that a student of mine is opposed to abortions or against the war in Afghanistan – do I have to let that student speak about that when the subject we are discussing is the Commerce Clause, or even when we are talking about abortion or war powers do I have to let that student dominate the conversation to the exclusion of everybody else? Freedom of speech, like other rights, is circumscribed at work and at school because there are other purposes that those institutions are devoted to and people may not, in the exercise of freedom of speech, make it difficult or impossible for those institutions to achieve those purposes. Another reason why tee shirts, posters, or even derogatory comments can be regulated at work or at school is precisely because of the more limited and directed nature of these comments. When I put a poster saying that "Women can't handle the pressure" or "Men are pigs" every other employee of that gender knows that this is being directed at them personally. That isn't quite the same as hearing some talking head make the same hateful comments on television. We all have to go to work – we all have to go to school – and other people don't have the right to create a hostile environment so that they can drive us out of those settings.
I think we need to be careful before we clamp down on peoples free speech rights when we are basically forcing them to be there.
It seems to me that free speech rights should allow a student to wear an offensive t-shirt (as long as not excluded by any agreed upon dress code). The student has a right to his opinion and to express his opinion. The t-shirt's in question stated an opinion about Islam, a belief system, not individuals. So who's rights could the shirts have infringed on? Do I have a right not to have my religion ridiculed or mocked? Of course not.
As for the hostile environment, again the shirts in question did not propose attacks against any individuals. They simply stated the wearer's opinion regarding Islam. Would it be unconstitutional for a student to say to another student "I think Islam is of the devil"? Would it be unconstitutional for a student to stand up in class and say "I think abortion is of the devil" or "I think General Motors is of the devil"? It certainly cannot be. And therefore, without any attack against an individual, without any urging toward aggression, how can an expression of opinion on a t-shirt foster a hostile educational environment to an unconstitutional extent?
Perhaps if these students were attending an Islamic school then their shirts could be seen as targeted against individuals (such as burning a cross right next to a black family's home, to use your analogy above). But these students were at a public school. Their message was intended to be heard by all students at their school regardless of faith. So it could not have been a focused or targeted message against any individuals.
Since religions do not have any constitutional rights not to be mocked, I cannot agree that these shirts should be banned.
Dave,
I agree we have to be careful. But I think that employers and school officials have to draw a line.
Jz,
I appreciate your point of view – like Dave, you opt for freedom of speech, which is usually a pretty good position to take. What would you do if you were the principal of a junior high school that had children from many different religions, and some children chose to wear tee shirts describing one of those religions as a "gutter religion." Or if it contained a racial, religious, or ethnic slur. Are you saying that you would allow this? I think that the parents of the children whose race or religion was targeted have the better argument here.
I stand pretty strong for the First Amendment. I think that children cannot be made to salute the flag or to say a prayer in school, and that they do have the right to wear religious or political symbols to express their views. I love message shirts, and would probably give students a lot more leeway in that regard than most school administrators would. But vicious verbal attacks on people's religions or ethnicity … no.
You are probably correct in stating that "religions do not have any constitutional rights not to be mocked." I will concede that the Constitution does not require school officials to act – But the question is, do employers and school officials have the right to prohibit language that attacks other people's race or religion?
It is a tough call. But the unspoken consequence of free speech is that people who don't want to hear will hear it. Otherwise there would be no need to protect it.
Give people some more credit. If someone showed up with a swastika shirt, other people would think they were a jerk.
These things don't recruit, they just reinforce what people already believe.
I would give an employer more flexibility, but students are, to some degree, forced to be there.
Dave's comment really sums up my thoughts very well- "It is a tough call. But the unspoken consequence of free speech is that people who don't want to hear will hear it. Otherwise there would be no need to protect it." The logic there is very sound.
We should also distinguish between public education, private education, and privately owned places of employment. If a private employer wants to disallow certain messages, clothing, or activities she should have the right to do so with very few exceptions (none come readily to mind). So if a private employer or the school board of a private school had decided to ban these t-shirts, I wouldn't argue against them.
Since private employment is such a different ballgame than public school, arguments regarding private employment are better suited to a different threaded conversation (one I would be happy to participate in).
You posed this question to me, Professor: "What would you do if you were the principal of a junior high school that had children from many different religions, and some children chose to wear tee shirts describing one of those religions as a "gutter religion." Or if it contained a racial, religious, or ethnic slur. Are you saying that you would allow this?
We need to draw a line between attacks on an institution and attacks on individuals. Racial and ethnic slurs are attacks on individuals or large groups of individuals. They are targeted. A religious slur might be targeted against individuals, but also might not be. "Christianity is stupid" does not attack any persons. "Christians are stupid" does attack persons. See the difference? One targets people who have rights. The other targets an institution that does not have rights. One is actionable, one isn't.
I would even notice a difference in your final question: "But the question is, do employers and school officials have the right to prohibit language that attacks other people's race or religion?" – a religion is chosen. Race is not. The two issues are very different and mixing them only breeds unfair and unnecessary complexity. Racial slurs cannot be allowed to stand. But expressing your opinion about a race? Probably. After all, in America we are allowed to be a racist- you just can't hire or fire on account of it. You certainly have a right to get up and leave if someone with the wrong color skin sits next to you. You can also write to your local paper about your opinion that all ________ are evil. And the paper can choose to print it or not. But this conversation didn't start with race and it shouldn't be sidetracked with race.
Remember, the original t-shirts read "Islam is of the Devil". This is a statement of personal belief regarding a religion. It is also itself a religious statement because it presumes the existence of the Devil. So in all regards this was a religious statement and not a racial one.
The real question here is whether students at a public school, who are required to be there, are allowed to express their opinion of any given religion. I've not read anything in the constitution that would suggest they do not have the right to comment on a religion.
If I understand your argument correctly, you interpret the t-shirts as vicious attacks on a person's religion. And they should not be allowed because of that. But I don't understand yet the "why" of your argument. Where is the constitutional ground for denying an attack by a private individual on a religion?
I am a Christian and went to a high school that was decidedly unfriendly to Christian beliefs. Our school paper ran a series of editorials about how Christianity didn't make sense. Could I have sued to make them stop? I doubt it. Instead I responded in the same forum. And that is the appropriate response. These t-shirts are very similar to the editorials in my high school paper. They are expressions of opinion about a religion made by individuals without any group of persons being targeted. If someone wants to fight against those messages, let them do so in the proper interpersonal context. Perhaps they should print and wear t-shirts saying "Jesus didn't hate". Or better yet, they should write in to their local school paper about what sort of offense these shirts are causing. Let public opinion sway the shirt-wearers.
It all boils down to free speech. As Dave said, if we are to have free speech it necessitates that we will all hear messages we don't want to hear. If I were the principal of this school I would talk to the students, talk to the parents, try to explain how idiotic the shirts look and how imbecilic they make the students look, but I wouldn't ban them. And it's just as well because I don't believe I legally could anyway.
The fact that students have to be there cuts both ways. The offended parties are placed in a position in which they cannot avoid or turn off the offensive language in question. This kind of language can affect the basic functioning of the institution, much like an angry protest would disrupt a court proceeding if it were allowed to be held inside a courtroom during a trial.
larry – you are one of the smartest posters here. So I have to think long and hard when we seem to be on opposite sides.
But in my defense, I would point out that the founding fathers didn't find it necessary to protect people from speech.
To be honest this is one of those cases that shouldn't be a federal case at all but left up to a principal's discretion. Learning to live with or overcome a minor injustice is part of growing up, really. The worst thing to do for those kids would be to sensationalize the whole affair which of course is what happens.