An Inconvenient Symbol: Why The Flag Decision Flies In The Face Of Our Core Values

Below is my column today in USA Today on the ruling out of the United States Court of Appeals for the Ninth Circuit over a ban at a California high school of students wearing tee-shirts with American flags during the Mexican heritage celebration Cinco de Mayo. The opinion is Dariano v. Morgan Hill Unified Sch. Dist., 2014 U.S. App. LEXIS 3790.

On Cinco de Mayo in 2010, students who came to Live Oak High School outside San Jose were rounded up by teachers for engaging in offensive speech. The speech? They had American flags on their T-shirts, something the school viewed as insulting to Hispanics. Administrators insisted that only the Mexican flag could be shown on campus that day.

Last week, the school’s actions were unanimously upheld by the federal appellate court in California — a ruling that would allow flags and other patriotic symbols to be banned like profanity or hate speech.

In reality, the ruling is not a sign of contempt for the flag but a sign of contempt for the rights of students. The fact that this speech concerns the flag itself (the very symbol of civil liberties) captures how far the courts have gone in abandoning core First Amendment rights for students.

The case started because Live Oak High was concerned about prior disruptions and saw the American flag as “incendiary” and disrespectful. Accordingly, Assistant Principal Miguel Rodriguez ordered students to change their shirts or turn them inside out to hide the flag. Those who did not comply were sent home. Last Thursday, the federal appellate court in California unanimously upheld the school’s actions. Judge M. Margaret McKeown of the Ninth Circuit ruled, “Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence.” What they did is second-guess the First Amendment and the precautions put in place to protect it.

What is most ironic is that the Ninth Circuit decision was handed down days from the anniversary of the 1969 decision in Tinker v. Des Moines Independent Community School District. In Tinker, the court supported the free speech rights of students who were wearing black armbands in protest of the Vietnam War, a highly divisive issue that had resulted in violent clashes around the country. Then, the court insisted that students did not “shed their constitutional rights … at the schoolhouse gate.”

Since Tinker, however, the federal courts have not only stripped students of their free speech rights at the schoolhouse gate, they also have done so at their bedroom doors. Federal courts have upheld a series of cases where school officials have punished students for statements that they make outside school on social media. The current members of the Supreme Court have fueled this rollback in their own controversial decisions.

What is most disturbing about last week’s decision is that the court entirely misses the distinction between speech and conduct. When presented with threats of violence, the school should punish those who engage in harassing or violent acts. Indeed, the court described an earlier confrontation when some students raised an American flag on Cinco de Mayo and “one Mexican student shouted ‘f*** them white boys. … Let’s f*** them up.'” One would have thought that those who made threats would face action from the school administration. Removing any display of the flag in the face of violence is akin to removing gay students to avoid harassment or girls to avoid sexual assaults.

Our high schools should be training future citizens to live within a pluralistic society. Instead, Live Oak High is teaching students that it is the speech, not those who threaten the speakers, that is the problem. Citizens shaped in such an environment are likely to view speech as a discretionary privilege allowed by our government rather than an individual right guaranteed in our Constitution.

Ironically, the flag is the very symbol of a nation of differing faiths, cultures and races bound by liberty. Perhaps the school was right: If you are going to deny free speech, it is the last thing you want to see.

Jonathan Turley, a George Washington University law professor, is a member of USA TODAY’s Board of Contributors.

March 3, 2014

44 thoughts on “An Inconvenient Symbol: Why The Flag Decision Flies In The Face Of Our Core Values

  1. Didn’t you get the memo, raff. PC trumps the Constitution now. At least in the PC cabal. And Mr. Turley, you are going to get a lot of hatred for writing this courageous piece. Kudos.

  2. Something seems to be going wildly off the tracks when officials support those who threaten violence by suppressing the free speech rights of others.

    I will be interested to see how this develops if it makes it to the supreme court.

  3. I said it before in a prior post, I will say it again (Prof Turley take note for your future analysis’):

    This treatment of deference to school administrators is identical to the jurisprudence the courts have given in deference to prison administrators.

    The logic, the analysis and the presumption of overarching delegation to the administrators of ad hoc interpretation of Constitutional rights is the same.

    The federal courts have so long and so more often dealt with prisoners complaining about administrative rules that violate their Constitutional rights, that they unconsciously took that same presumptive approach to public schools and their administrative rules.
    After all they are both government institutions that have to deal with wards of the state, wards that are not considered competent to make their own choices.
    The courts have long ruled in prison contexts that they will not second guess a prison administration’s discretionary actions in handling their inmates.

    It is amazing that this ruling would come from a relatively liberal court who has often set the boundaries for civil liberties in the federal system.

    This one is truly a no-brainer, as Prof Turley has succinctly explained in this article.
    It truly needs an en banc review.

  4. Gary, you say it’s a no-brainer for review, but you lay out the argument for ceding of free speech rights of students.

  5. Stourley:
    I only lay out that argument only IF one considers a public school to have the same legal treatment as a prison. If that is true then they should say it explcitly, without beating around the bush.
    This and many other federal rights rulings about how micromanaging a school’s administration can legally be to its students (read inmates, wards, patients) daily lives is becoming ever more a reason why parents should choose not to have their children subjected to it.
    It is quite simple, if the legal mandate to go to a public school necessarily includes the ad hoc removal of Constitutional rights, then that mandate is illegal.

    What I am saying is not that students should be stripped of their rights, just because they are going to school, but that it should be legally recognized that forced induction into such an institution is necessarily a forced removal of Constitutional rights.
    One or the other has to give way. Either make school voluntary, or prohibit the violation of these rights.

  6. Well said. Perhaps you will answer the question I posed to all previously. May schools bar the wearing of gang colors?

  7. I think you posed it simpler “Do students have the right to wear gang colors”

    And the simple answer is
    “Students have the right to wear any color they want.”
    Green, blue, plaid, polkadot, or whatever.

    But I would caveat that and say this right only applies fundamentally to government funded schools, or anywhere there is a governmental mandate to attend.

    A private school can promulgate any rule it wants, because the remedy readily exists to avoid it, just not attend.
    If the subject student has a problem with the rule there, he can alternately go through whatever corporate bylaws or administrative channel to change it, or even lawsuit if that is the only way to do so.

  8. Lest anyone think that that truancy is just a scofflaw, see this short documentary on children being put into solitary confinement, for among other things, failure to attend school:

  9. Free Speech, RIP: A Relic of the American Past

    By John W. Whitehead
    March 03, 2014

    “The First Amendment was intended to secure something more than an exercise in futility.”—Justice John Paul Stevens, dissenting in Minnesota Board for Community Colleges v. Knight (1984)


    Living in a representative republic means that each person has the right to take a stand for what they think is right, whether that means marching outside the halls of government, wearing clothing with provocative statements, or simply holding up a sign. That’s what the First Amendment is supposed to be about.

    Clearly, the government has no interest in hearing what “we the people” have to say. Yet if Americans are not able to peacefully assemble for expressive activity outside of the halls of government or on public roads on which government officials must pass, the First Amendment has lost all meaning. If we cannot stand silently outside of the Supreme Court or the Capitol or the White House, our ability to hold the government accountable for its actions is threatened, and so are the rights and liberties that we cherish as Americans. And if we cannot proclaim our feelings about the government, no matter how controversial, on our clothing, or to passersby, or to the users of the world wide web, then the First Amendment really has become an exercise in futility.

    George Orwell, always relevant to our present age, warned against this intolerance for free speech in 1945. As he noted:

    The point is that the relative freedom which we enjoy depends of public opinion. The law is no protection. Governments make laws, but whether they are carried out, and how the police behave, depends on the general temper in the country. If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them… The notion that certain opinions cannot safely be allowed a hearing is growing. It is given currency by intellectuals who confuse the issue by not distinguishing between democratic opposition and open rebellion, and it is reflected in our growing indifference to tyranny and injustice abroad. And even those who declare themselves to be in favour of freedom of opinion generally drop their claim when it is their own adversaries who are being prosecuted.

  10. Our Independent Judiciary has really abdicated it’s most important duty of “checking” the constitutionality of the Executive and Legislative branches of government at the local, state and federal levels.

    The Judiciary has almost surrendered a subordinate role to the other branches instead of a co-equal branch providing judicial review. Think the judicial mission creep started after 1968 with the so-called War on Drugs, then 9/11 was the final blow to America’s constitutional Rule of Law model of government.

    The big question is how do we get the judges to start being judges again?

  11. There you have it: three rulings in three days, from three different levels of the American judicial system, and all of them aimed at suppressing free speech. – John Whitehead of the Rutherford Institute

    Rutherford, from the link provided at 9:12 am:

    “In fact, if the court rulings handed down in the last week of February 2014 are anything to go by, the First Amendment has, for all intents and purposes, become an exercise in futility.

    On February 26, the U.S. Supreme Court in a 9-0 ruling, held that anti-nuclear activist John Denis Apel could be prosecuted for staging a protest on a public road at an Air Force base, free speech claims notwithstanding, because the public road is technically government property.

    Insisting that it’s not safe to display an American flag in an American public school, on February 27, the Ninth Circuit Court of Appeals ruled that school officials were justified when they ordered three students at a California public high school to cover up their patriotic apparel emblazoned with American flags or be sent home on the Mexican holiday Cinco de Mayo, allegedly out of a concern that it might offend Hispanic students.

    On February 28, a federal court dismissed Marine veteran Brandon Raub’s case. Despite the fact that Raub was interrogated by Secret Service agents, handcuffed, arrested, subjected to a kangaroo court, and locked up in a mental facility for posting song lyrics and statements on Facebook critical of the government—a clear violation of his free speech rights—the court ruled that Raub’s concerns about the government were far-fetched and merited such treatment.

    There you have it: three rulings in three days, from three different levels of the American judicial system, and all of them aimed at suppressing free speech. Yet what most people fail to understand is that these cases are not merely about the citizenry’s right to freely express themselves. Rather, these cases speak to the citizenry’s right to express their concerns about their government to their government, in a time, place and manner best suited to ensuring that those concerns are heard.”

  12. “…then 9/11 was the final blow to America’s constitutional Rule of Law model of government.

    The big question is how do we get the judges to start being judges again?”


    A whole lot of truth.

    Florida Cops’ Secret Weapon: Warrantless Cellphone Tracking

    By Kim Zetter


    Police in Florida have offered a startling excuse for having used a controversial “stingray” cellphone tracking gadget 200 times without ever telling a judge: the device’s manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts.

    The shocking revelation came during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim’s cellphone. Using the stingray — which simulates a cellphone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment.

    During recent proceedings in the case, authorities revealed that they had used the equipment at least 200 additional times since 2010 without disclosing this to courts and obtaining a warrant.

    The judges revealed that the reason authorities didn’t obtain a search warrant and didn’t want to disclose their surveillance technique in an open court was because of the NDA. But that wasn’t all. A video of oral arguments before the appellate judges revealed more.

    When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges interrupted.

    “No, no, no, no, no,” he said. “I think this record makes it very clear they were not going to get a search warrant because they had never gotten a search warrant for this technology.”

    His fellow judge then interjected loudly, “Two-hundred times they have not.”

    The ACLU was surprised by the admission.

    “[Wh]en police use invasive surveillance equipment to surreptitiously sweep up information about the locations and communications of large numbers of people, court oversight and public debate are essential,” the group noted in its post.

    But the possibility that an NDA may have been the excuse for not disclosing the technology was an even greater concern. [A video of the oral arguments is available on the court’s web site. Discussion of the technology begins at 9:15; mention of the 200 times they used the technology without a warrant occurs around 18:00.]

  13. Thank you…. If you can’t beat submission anymore….. We will do it with mind control… What’s PC correct today….. May not be PC tomorrow….. The Germans are the best example……

  14. Its sad how the court system sometimes allows for the rights of some to be walked upon, however its also true that karma is a bitch and what goes around truly comes around and white people are now on the discriminatory receiving end. Hopefully we can get to a point were we all treat each other with respect.

  15. Alekz, The vast % of people who perpetrate PC are white. They are liberal. They have quilt and a certain amount of self loathing. They believe the goal is to have a culture where no one is offended. Their hearts are “pure.” Black folk, Hispanics, ethnic, are not PC. PC is condescension on steroids.

  16. ” They believe the goal is to have a culture where no one is offended.”

    I think there is a lot of truth in your observation that for some PC advocates, assuring inoffensive behavior is the highest goal.

    The irony is that in preventing offensive speech the PC necessarily enforce their own standards – which some of us find deeply offensive.

    Despite the PC claim that they are preventing offensiveness, the fact is they make decisions about who is worthy of not being offended and who can be offended and suppressed with impunity.

    I have remarked here extensively against bigotry, particularly racism. but PC is no solution to bigotry. PC only substitutes one, presumably better, opinion for another.

    Wouldn’t it be better to teach that the best response to offensive speech is to engage it and explain why it is wrong. If the offensive speech really is deficient, that should become apparent to all who listen to the opposing arguments.

  17. I commend the author for mention of the Tinker case. Last year Mary Beth Tinker, one of the Tinker plaintiffs, and her family did a tour around the nation to encourage students and others to exercise their free speech rights. The students in this particular school out there in northern Mexico should completely immolate the black armband thing embraced by the Tinkers. They could then use the Tinker decision as their Supreme Court precedent. The students should invite the Tinker Tour to come to that Mexican American town and teach the teachers about the Constitution. They could stop in at the Ninth Circuit Court of Appeals. Remember this too: Those who can: do; those who can’t: teach; those who can’t teach: teach teachers. We have to turn this around and teach those dumb teachers and principals about the Constitution. I think that the students should attend the School Board Meeting with the black armbands and chant that The British Are Coming! Remember. It is what you wear that matters.

  18. doesn’t anyone recognize common sense any more ? If a kid wants to wear any flag on their clothes, unless there is a school uniform, that should be ok – what are they achieving here ? I do not understand !

  19. I agree with Gary T and I might add I have always felt the lack of due process with juveniles is a constitutional abomination. I am not aware of anything in the constitution that grants rights only upon adulthood other than sufferange and ages of representatives, sentators, and the president. The lack of a jury trial is the most flagrant. Sure, the states call it delinquency and a civil matter but it is not relevant and just a change of semantics.

  20. The decision is correct.

    The fact that it was the U.S. flag on the tee-shirts is completely irrelevant. The wearing of the shirts is plainly anti-Mexican hate speech. The school admin was correct in recognizing it as such.

  21. Darren:

    Children cant drink or smoke or drive. They arent expected to understand various things because of their youth. Doesnt a jury trial imply a level of sophistication most youths dont have? In most cases do we want our young subjected to adult law?

  22. “The wearing of the shirts is plainly anti-Mexican hate speech.”

    Well, maybe it is hate speech. But in the article describing the situation, the clearest expression of hate came from the adolescent shouting words to the effect ‘f*ck those boys up’. If I understood the article correctly that student was not trying to display the US flag.

    In any case, I, for one, don’t see how you can get to symbolic speech being ‘plainly’ anything.

    It is symbolic. The meaning of the symbol has to do with both the intention of the one who displays the symbol and the understanding of the one who views the symbol.

    The first possible meaning of a flag is the country or entity the flag represents.

    The first meaning that I see in the display of a flag is allegiance by the one who displays the flag to that entity, in this case the US.

    There might be any number of reasons why students or others might want to display their preferred flag.

    If the display of the flag is hate speech then the one who sees that meaning in the symbol needs to explain to the rest of us why that is the most reasonable interpretation of the symbol.

    Finally, we should remember two things. Expressing support for one group is not necessarily the same as opposition to a different group. And there is nothing necessarily hateful about expressing opposition to a different group.

    Hate is specific and serious. Merely displaying support for or expressing opposition to a particular group are not at all the same as hate.

  23. Flag etiquette in our country used to dictate that the American Flag would be displayed higher than others. Why would the Mexican Flag be worn on a tea shirt in this Country and not the American Flag? All the teachers, administrators,and judges are here alive in a so called free country because of what that flag stands for, they should all be deported to Mexico being they love that Culture and their flag so very much; and that goes for the boys in the other post that said they want to beat up the white Americans for Raising high our Banner.

  24. The First Amendment is designed to protect unpopular and even offensive speech from government sponsored retaliation [school officials] – popular speech doesn’t need protecting.

    There are very few exceptions to America’s “supreme law of the land”. Federal, state and local laws are mandated to operate within these boundaries under our Supremacy Clause of the U.S. Constitution [Article VI].

    Short of a school uniform policy, the school could provide better civics education so children better understand our Bill of Rights and rule of law: teaching kids to counter peaceful Freedom of Speech – with “more” peaceful Freedom of Speech, not violence or property destruction.

    Former U.S. Supreme Court Justice, Sandra Day O’Connor, offers free civics education to teachers and parents at It’s a very sophisticated website that uses various games to teach kids about American government. Teachers and school administrators might learn a thing or two also!

  25. ‘1984’. They work on the kids to make them timid & unexpectant of rights in adulthood. Quite disgusting; & this from someone who often does not see the point in flag waving as its generally too ambiguous as to what you mean. However, to ban it on a tee shirt to any age any day of the year is totally disgusting!

  26. @Nick Spinelli: “Baron of the PC Peninsula”.

    Damn’! That sounds important. I’ll take it! And while you’re at it, go ahead and call me a “bleeding-heart liberal”. I actually don’t mind being flattered. Fair warning, though: it will get you nowhere.

    On that PC thing: as you well know, it stands for “politically correct”. And the operative word there is “correct”.

  27. ” Removing any display of the flag in the face of violence is akin to removing gay students to avoid harassment or girls to avoid sexual assaults.”
    Or telling women not to wear short skirts.
    Prior restraint.

  28. If the school had brought on additional police for the day to maintain order, and then worried that that was not enough to ensure the safety of the people (kids), they would have a better case.
    Their theory seems like a “fighting words” theory, but I can’t quite place it.

  29. Many Americans claim to support the constitutional “rule of law” which promotes civility and peaceful political discussions. Many claim to be “law & order” Americans.

    The problem is rule of law that protects the student wearing the tee shirt also protects gay rights, gun rights, religious rights, press freedom, speech rights, women’s rights and due process rights.

    Democrats don’t like the entire package and Republicans don’t like the entire package. Government bureaucrats dislike most of the package like requiring warrants based on probable cause before searches. Every group wants to cherry pick the Bill of Rights.

    The Bill of Rights/US Constitution is an entire package – you accept all of it or none of it.

  30. The mentality of our court system and our state and federal government, under rule of law, is to ban and make everything illegal (except drugs),so as to NOT offend anyone and protect everyone. PLEASE stop protecting me so much😦
    California used to be a state that most other states looked up to, now the states legislature and judicial system has gone down the drain. I hope other sane states will ignore them.

  31. Situational Free Speech?
    Re: 9th U.S. Circuit Court of Appeals says a public school may order students not to wear a shirt with the American Flag on it when a foreign holiday is being celebrated.
    Think about this a second if you’re old enough to remember the anti-Viet Nam war protests. Generally speaking, it was the liberals who opposed the war and supported the right to protest, even for students in public schools. (And I was on their side, on the free speech/expression issue at least, as were the Courts as I recall.) Now, it’s generally the liberals who are concerned that this very same type of free speech/expression will offend someone and are willing to turn the First Amendment on it’s head NOT to protect free speech, but to avoid being offensive. So the proper exercise of one’s First Amendment rights is “situational?” Somehow I can’t make sense of this at all.

  32. The only “bright spot” is that they are trampling on the rights of the majority. So it could be worse.

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