The Danger of Hate Crime Laws

John Leo explains on the City Journal web site:

For several years now, an effort has been under way to carve out exceptions to free-speech protections on behalf of minorities and other selected groups. Hate-crime laws, as part of this effort, raise serious First Amendment issues. So far, the most dramatic success of this campaign was the two-to-one Ninth Circuit decision involving a student wearing a religious, anti-gay T-shirt to a public high school in Poway, California. In response to a school-sponsored “Day of Silence” on behalf of homosexuals, the student argued that he had a right to wear his shirt as a Christian rebuttal. In denying a preliminary injunction sought by the student, the court upheld the school’s right to ban T-shirt messages that strike at a “core identifying characteristic” of minority group members.

In other words, shirts featuring the Danish anti-Muslim cartoons could be banned, but not equivalent anti-Christian shirts, since Christians are a majority in America and Muslims are not. “Sorry. Your viewpoint is excluded from First Amendment protection,” read the first line of a blog commentary by UCLA law professor Eugene Volokh about the Ninth Circuit decision. The Supreme Court vacated the decision on the temporary injunction, but the main part of the case is still pending. The Ninth Circuit ruling shows that ideological positions in the culture war—in this case, that some groups deserve more protection than others—often pose as abstract legal decisions.

Another school-based free speech case involves a student in Juneau, Alaska, who unfurled an arcane pro-drug banner saying BONG HITS 4 JESUS. Though the student was not on school property—he positioned himself across the street—his banner was confiscated and destroyed. The case is now before the U.S. Supreme Court. The student will lose if the court applies a 1988 decision (Hazelwood School District v. Kuhlmeier) that gives principals and school boards the power to censor any student speech contrary to the “basic educational mission of the school.” This would allow school officials to ban student opinion that they consider wrong or inappropriate, such as criticism of abortion, homosexuality, or evolution. Religious and conservative groups have joined the ACLU and Feminists for Free Expression in defending the Juneau student. In the struggle for free expression, the Left and Right both have much at stake.