Liberal Judge Attacks Free Speech

The Ninth Circuit Court of Appeals is the most liberal federal appellate panel, and Judge Stephen Reinhardt is its most liberal judge. He is married to ACLU leader Ramona Ripston. Now the ACLU usually backs unfettered expresssion, even, to its credit, when that expression is offensive to liberal mores. It has filed lawsuits to fight student dress codes and has backed the right of high school students to wear t-shirts with profane language. So I was astonished to read here that Judge Reinhardt had authored an opinion holding that a high school may ban a t-shirt with the slogan "Homosexuality is shameful," on it.

In dissent, Judge Alex Kozinski, a Reagan appointee and long-time conservative foil to Judge Reinhardt's runaway liberalism, wrote:

"The types of speech that could be banned by the school authorities under the Poway High School hate policy are practically without limit. Any speech code that has at its heart avoiding offense to others gives anyone with a thin skin a heckler's veto - something the Supreme Court has not approved in the past."

However, Judge Reinhardt insisted that politically correct thought trumps the First Amendment:

"Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong. To say that homosexuality is shameful is to say, necessarily, that gays and lesbians are shameful."

"There are numerous locations and opportunities available to those who wish to advance such an argument. It is not necessary to do so by directly condemning, to their faces, young students trying to obtain a fair and full education in our public schools."

One wonders whether Judge Reinhardt would have ruled similarly if the t-shirt had read, "Christianity is shameful."

Ironically, I am quite sympathetic to the school authorities in this case. In the interest of maintaining school discipline and a proper learning atmosphere, I would back a ban on all "message" t-shirts, or even a dress code that did not allow t-shirts as outer wear. However, it is usually liberals of the Reinhardt-Ripston persuasion who oppose such bans. If t-shirts expressing opinions are to be allowed at all, I do not see how the school, consistent with the First Amendment, can ban one that expresses, in fairly tame terms, a view held by the Roman Catholic Church, most fundamentalist and evangelical Protestants, mainstream Islam and Orthodox Judaism. My prediction: this opinion will not survive a full-panel rehearing in the Ninth Circuit, much less review by the Supreme Court.

In the best tradition of American politics and jurisprudence, Judges Reinhardt and Kozinski, while fierce ideological rivals, are warm colleagues and friends, as depicted in this photo. Judge Reinhardt is on the viewer's left.