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John Leo
Taking a Flier on Free Speech
Hate-crime laws threaten the First Amendment.
4 June 2007

Handing out anti-gay fliers is apparently a risky act in Crystal Lake, Illinois. A 16-year-old girl who did so was charged with a felony hate crime and held without bail at a juvenile detention center for more than two weeks. Then the judge relented and let her go home. But the girl is being treated like a dangerous mafia chieftain: she was brought to court in leg shackles, she wears an electronic ankle device, and her phone calls and Internet use are being monitored. Her trial starts on Tuesday, June 5. One of her friends, also 16, will be tried as well for helping distribute the fliers.

The girl in shackles has been in trouble many times. She has had 13 run-ins with police over offenses such as alcohol and marijuana use and driving without a license. The girl’s record of misbehavior may explain why authorities called the cops over a leafleting incident, and why bail was denied for so long. But why is an anti-gay flier, even a cruel one, a felony? Denunciations of homosexuality, or any form of sexuality, presumably qualify for free-speech protection.

According to an assistant state’s attorney, the two girls were charged with a hate crime under Illinois law because the fliers “were not written for informational purposes but rather were to incite a breach of peace or cause injury.” Students say that one of the males pictured on the flier is identifiable—a friend with whom the girl has been feuding. Police have not revealed the text of the fliers, but students said that they featured the ugly words GOD HATES FAGS. The singling out of a specific student may account for the harsh treatment. But unless the material contained a direct threat, such punitive treatment of the girl makes no sense, and the case may enter the textbooks as a classic First Amendment violation.

Apart from direct threat, the only other free-speech exception the Supreme Court allows is a significant disruption of the educational environment. That does not appear to be relevant here. The girls distributed the fliers in the school parking lot, and reportedly handed out only about 40 before police arrived and arrested them.

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.

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More by John Leo:
The Power of One
Girl Crazy
Columbia’s Rebel Reunion
More . . .
This story was cited in:
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