7th Circuit Says First Amendment Protects "Be Happy, Not Gay" T-Shirts At Public Schools

The Wall Street Journal Law Blog reports:

Well, having dispatched with the case of the angry funeral protesters, let’s continue on the First Amendment theme, and turn to the breeding ground for so many rich First Amendment cases: the public schoolyard. Writing for a three-judge panel, Seventh Circuit judge Richard Posner on Tuesday ruled that a group of public high-school students had the right to wear “Be Happy, Not Gay” t-shirts on school grounds. Click here for the Chicago Sun-Times story; here for the opinion, which was joined by judges Michael Kanne and Ilana Rovner. In April 2006, Heidi Zamecnik, a student at Neuqua Valley High School in Naperville, Ill., wore the T-shirt to school after students the previous day had worn shirts showing support for gays and lesbians. The school’s dean demanded she remove it or be sent home for the day. Later, another Neuqua student wanted to wear a similar shirt to class. He had twice filed for an injunction that would suspend the school’s policy that prevented him from wearing the T-shirt. The school district argued that officials could prohibit students from wearing the shirts to prevent some students from having their feelings hurt. But the Seventh Circuit ruled that because the speech failed to fit into a recognized exception to the First Amendment, like the so-called “fighting words doctrine” (which allows restrictions on speech when speech is likely to incite immediate violence).

Wrote Posner:

[A] school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality. The school argued (and still argues) that banning “Be Happy, Not Gay” was just a matter of protecting the “rights” of the students against whom derogatory comments are directed. But people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.

Nate Kellum, senior counsel for the Alliance Defense Fund, a legal alliance of Christian attorneys who represented the students in the suit, responded to the Sun-Times: “In an environment that freely allows speech that promotes homosexual behavior, the school simply cannot shut out the opposing viewpoint.”

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