In Civil Rights and Liberties we are on to our last topic (or, really, range of issues within a topic) of the semester—discrimination—before we hit our end-of-semester moot court. Perhaps this is why, in their own way, this week’s posts all touch on questions of discrimination in a wide range of areas in the law.
Megan, in her post, returns to the topic of offensive speech to, this time, discuss Brandenburg v. Ohio (1969). Megan writes, “What is interesting about this case is the ruling in favor of a form of offensive speech. In this regard, the case could be considered similar to Snyder v. Phelps (2007) given the context of the messages.” What she finds is that the Court is willing to draw some lines, but speech that offends is not automatically on any specific side of these lines. Thus, Megan addresses the question of discrimination in the nature of offensive speech—Brandenburg involves the KKK, and she also discusses Virginia v. Black, a hate speech case, and Snyder v. Phelps, involving the Westboro Baptist Church’s protests at military funerals—finding that the Court, in the interest of speech rights, sometimes allows speech-based discrimination, but not always.
Shai’s post addresses discrimination through her examination of another school free speech case, this time in secondary education. The case is Dariano v. Morgan Hills School District, and the Supreme Court recently deiced not to hear this case. The district court and 9th Circuit both found in favor of the school in this case, finding that the school’s ban on wearing shirts depicting the American flag (which was done on Cinco de Mayo as a juvenile discriminatory response to an incident involving a student who was bullied for wearing a shirt with a Mexican flag the previous year on the same day) was completely consistent with the Court’s precedent in Tinker v. Des Moines Independent Community School District. Shai expresses disappointment that the Court did not take the case for review as there appears to be a clear violation of students’ free speech rights as outlined in Tinker, especially as the speech in question is the wearing of a shirt with the nation’s flag on it. She adds that students should be allowed to display the Mexican flag as well, as the expression is not limited just to the American flag. Despite the probable discriminatory intent of the students who chose to wear the American flag, this is still free speech, and rather innocuous speech (as was the speech that prompted the original discrimination) at that.
Matt, in his post, returns with this follow-up to his earlier post about the University of Oklahoma and their disciplining of fraternity members for their racist chant. In his previous post, he referred to the school’s actions as a missed learning opportunity. He moves from why the decision was bad pedagogy to why it was bad (read: unconstitutional) practice in this post. The arguments for the University of Oklahoma code of conduct that was used against the student to not seem to hold up when the event is looked at in the proper context, and, as Matt points out, at the heart of this is a state entity (the state university) punishing students for the content of their otherwise protected (albeit odious) speech. The very nature of the reaction defies, as Matt explains, “… a strong and long-standing tradition within this country that shows our public universities are the perfect stages for public protest, and tradition that has been upheld and protected by the Supreme Court.”
As with her previous post, Jules addresses Indiana and the Religious Freedom Act. She adroitly addresses the flaws with the conception and execution of the original Act that were addressed in the quick revisions to the law. However, where her post truly shines, is in its analysis of Governor Pence’s non-apology in the wake of the overwhelming backlash at his role in advocating for, and defending, a law that seemingly would have had discriminatory impact, intent, and effect. As the students in Civil Rights and Liberties are learning now, the Court has been involved in addressing all of these constitutional short-comings in various statutes, and it looks like Indiana was headed that direction before the state bent to the large backlash against their law. Also, as these students are learning, while discrimination is often hard to prove, there are also “easy” cases where the discrimination in the law is, actually, self-evident.
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