674 F.3d 505 (6th Cir. 2011), 09-6080, Defoe ex rel. Defoe v. Spiva
|Citation:||674 F.3d 505|
|Party Name:||Tom DEFOE, a minor by and through his parent and guardian Phil DEFOE; Phil Defoe, Plaintiffs-Appellants, v. Sid SPIVA, in his individual and official capacity as Principal of Anderson County Career and Technical School; Merl Krull, in his individual and official capacity as Assistant Principal of Anderson County Vocational and Technical School; Gre|
|Attorney:||Van Irion, Law Offices of Van R. Irion, Knoxville, TN, for Plaintiffs-Appellants. Arthur F. Knight, III, Jonathan Swann Taylor, Taylor, Fleishman & Knight, Knoxville, TN, for Defendants-Appellees.|
|Judge Panel:||Before: CLAY, ROGERS, and COOK, Circuit Judges. BOGGS, Circuit Judge, dissenting from the denial of rehearing en banc.|
|Case Date:||March 14, 2011|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.
The panel majority eviscerates the core holding of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)— that student speech can be suppressed only based on its disruptive potential, not on its content. 393 U.S. at 509, 89 S.Ct. 733. There is no indication in Tinker that its rules are any different if the speech at issue is deemed, by either a school or an appellate court, to be offensive, " hostile," or " contemptuous." See Defoe v. Spiva, 625 F.3d 324, 338 (6th Cir.2010). Nor is there any indication that such a judgment would change the basic First Amendment values that Tinker enshrines. See Tinker, 393 U.S. at 511-13, 89 S.Ct. 733.
The panel majority rests its remarkable conclusion on Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007), where the Court found the speech in question— a 14-foot banner with the message " BONG HiTS 4 JESUS" — to be promoting illegal drug use. 551 U.S. at 397, 402, 127 S.Ct. 2618. The majority does so despite the clear warnings in Morse, especially in Justice Alito's decisive concurring opinion, that the Court was not undermining the basic holding of Tinker, but was simply allowing an exception for speech promoting drug use, which is both illegal and directly contrary to a tenet of the school system. 551 U.S. at 408-09, 127 S.Ct. 2618; id. at 423, 425, 127 S.Ct. 2618 (Alito, J., concurring). Morse does not give the slightest hint that schools are authorized to suppress any speech that either they or an appellate court deems contrary to the school's " mission" or " core values."
Wholly disregarding these warnings, the majority opinion asserts that this case is controlled by Morse because " racially hostile or contemptuous" can be substituted for " illegal drug use." Defoe, 625 F.3d at 338-39 (" If we substitute ‘ racial conflict’ or ‘ racial hostility’ for ‘ drug abuse,’ the analysis in Morse is practically on all fours with this case." ). That is grammatically true, but it is equally true if you substitute " religious dogma," " Republican propaganda," or " seditious libel." Morse does not authorize suppression on any of those grounds either, but the panel's ipse dixit
reading of Morse would support such a holding just as strongly as the one it makes.
The faults of the majority opinion are many, as ably pointed out in the amicus brief of the ACLU. I wish to highlight a few.
The majority's test was nowhere argued either at the district court or in the briefing to the panel. No claim was ever made that speech could be banned simply because an appellate court found it to be, as a matter of law, " racially hostile and contemptuous." See id. at 338. The school made no claim on that basis, nor did it claim that the Confederate emblems in play here were such.
I emphasis the phrase " as a matter of law" because the proposition that the symbol at issue is " racially hostile and contemptuous" was never put to a test in the district court. Presumably it would otherwise be a matter of fact as to what the student plaintiffs actually meant by the symbol, or perhaps expert opinions by semioticians could reveal its abstract meaning. One would think that context would make some difference— a Confederate flag on a book cover might be thought of as different in meaning than a Confederate flag...
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