Wednesday, April 23, 2008

7th Circuit: "Be Happy, Not Gay" Is Not Derogatory Or Demeaning

Many public schools conduct a so-called "Day of Silence" each year to draw attention to the problem many gay and lesbian students have with harassment and discrimination by their fellow students. The aim of the silent demonstration is to promote tolerance for homosexuals. At a large Naperville, Illinois high school, a group of students wanted to hold a counter demonstration the day after the "Day of Silence" called the "Day of Truth". The purpose of the "Day of Truth" demonstration is to convince students that the Bible teaches disapproval of homosexuality. Students participating in the demonstration wanted to wear T-shirts with the legend, "Be Happy, Not Gay." School administrators banned the T-shirts based on a school rule forbidding “derogatory comments,” oral or written, “that refer to race, ethnicity, religion, gender, sexual orientation, or disability.” The "Day of Truth" students sued the school to obtain a preliminary injunction against its enforcement of the rule to ban the T-shirts. A district court denied the injunction, but the 7th Circuit Court of Appeals reversed that ruling in an opinion released today. According to the Court, "Be Happy, Not Gay" is "only tepidly negative and is not "derogatory" or "demeaning". As the Court explained:

Nevertheless, “Be Happy, Not Gay” is only tepidly negative; “derogatory” or “demeaning” seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says “Be Happy, Not Gay” would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech. We are therefore constrained to reverse the district court’s order with directions to enter forthwith (the “Day of Truth” is scheduled for April 28) a preliminary injunction limited however to the application of the school’s rule to a T-shirt that recites “Be Happy, Not Gay.” The school has failed to justify the ban of that legend, though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light.
The Court's decision is a little hard to square with its discussion of the phrase "Be Happy, Not Gay". "The plaintiff himself describes 'Be Happy, Not Gay' as one of the 'negative comments' about homosexuality that he considers himself constitutionally privileged to make," the Court said. Yet, the Court doesn't see them as “fighting words,” words likely to provoke a violent reaction and hence a breach of the peace, which the Supreme Court has placed outside the protection of the First Amendment. Even the Court conceded the plaintiff in this case wouldn't stop at a simple T-shirt to prove his point. It writes:

And of course the plaintiff doesn’t want to stop there. He wants to wear T-shirts that make more emphatically negative comments about homosexuality, provided only that the comments do not cross the line that separates nonbelligerent negative comments from fighting words, wherever that line may be. He also wants to distribute Bibles to students to provide documentary support for his views about homosexuality. We foresee a deterioration in the school’s ability to educate its students if negative comments on homosexuality by students like Nuxoll who believe that the Bible is the word of God to be interpreted literally incite negative comments on the Bible by students who believe either that there is no God or that the Bible
should be interpreted figuratively.
I think the only thing the Court has accomplished with its decision today is ensured that there will be more litigation over this issue. The religious right here in Indiana is already sending out warnings to parents to be prepared to spring into action to stop schools from conducting a "Day of Silence". God forbid the schools promote tolerance.

Big hat tip to Indiana Law Blog.

16 comments:

Flynn said...

Doesn't "tolerance" include tolerance for religious view that might be different from yours? I don't know why a restriction on someone's speech about a political and religious issue, a restriction based on the notion that those views are disagreeable, is somehow a good thing or permitted by our Constitution. That's the whole idea of the Free Speech Clause...you can't prohibit speech based on the content of that speech.

Using the "fighting words" exception as some kind of blank check to ban speech that makes people uncomfortable or they may disagree would lead to a gutting of the Free Speech Clause. The great thing about our country is that people are allowed to speak on issues, even when the position stated isn't popular.

I haven't read the decision, but I can't fathom why it would even be necessary for the court to look at whether the phrase "Be Happy, Not Gay" is "derogatory" or "demeaning." Even if it was derogatory or demeaning, it should still be protected speech.

Advance Indiana said...

Unless you consider, Flynn, the possibility that a person is born gay and has no control over their sexual orientation--just like a person has no control over the color of their skin. If you're gay and other students are walking around the school with the message on the T-shirt that you can't be happy because you're gay, it has a pretty stinging impact. Nobody would question that a similarly-worded message about a person's race would be considered fighting words.

artfuggins said...

Must have been republican judges

Flynn said...

Well, I think the jury is still out on what causes sexual orientation. My guess is genetics and environment both play a role. I certainly don't buy it's simply a "choice."

Nonetheless, I still think that is irrelevant. It would still be regulating speech based on the content of that speech. We don't block the Klan from arguing for white supremacy even though non-whites have no choice over the color of their skin, they're born that way.

I'm not supporting the speech. I'm just saying it's a mighty slippery slope when you start banning speech based on the content of that speech.

jabberdoodle said...

I'm not a lawyer - so some of this I can only weigh in on from a common sense perspective.

Freedom of speech isn't as free inside a school as outside. I'm not saying that is beneficial to the kids; just that the adults get all itchy when the kids comment like adults on questions of the day. That's why they fire student newspaper advisors when the kids write stuff about being gay, or about birth control, or about oral sex.

Since the schools do not allow all speech - I think they were right to try to ban this hurtful speech. But, in a perfect world I think the freedom of speech inside a school should be as free as outside and we should 'tolerate' the despicable ideas.

If I were a student, I'd get some shirts that rebutted these ones. I'm obviously not clever enough to twist the slogan, but a kid would be.

MissouriDemocrat said...

I love hetrosexuals who are experts on homosexuality. Wonder what the court would think about "Gay and Happy, join us!" I bet Eric Miller would have a field day with that wanting a Constitutional Amendment to prevent any Gay person from speaking in public and Bosma would intoduce it, Woody would sponsor it and design a license plate against Gay Speech with flags and crosses.

gnwmann said...

Yeah, and the rightwing are doing their research too. A woman purporting to be a parent called yesterday to see if my school was participating. The principal is a dolt though and did not talk to me then. Instead they put out this policy statement to teachers today:

"Students participating in this event Friday at ____ may wear shirts or buttons regarding the event. Their posture will be to remain silent throughout the day. Last year there were a few students who did participate in this event; however, I was not aware of this event until this morning when an adult called me to ask if we were honoring the event. As a result of this phone call, I did some calling to determine the focus of this
day and its purpose.

Our official policy on this event on Friday, April 25th for the _______School Corporation is as follows:
Students who honor THE NATIONAL DAY OF SILENCE by maintaing a posture of silence may do so at anytime other than class time. Students in class are expected to participate as usual at the requrest of the teacher. Students who disrupt class by not cooperating in class when asked to speak or cooperate verbally should understand this policy and be given a second opportunity to cooperate. If inapropriate behavior continues that disrupts the class please send students to the office."

What do you think of that?

Randy said...

To my limited understanding, and I haven't read everything about this event, is this a movement to end violence (verbal and physical) against people on the basis of their sexual orientation. As a right wing conserviate "crazy person", I see no problem with allowing the day of silence. I am against the be happy, not gay event soley because its asking people not to be themselves. Its not doing anthing positive in the sense of feeding the homeless, stop violence, etc. It is only there to promote and idea that many people will view as negative. The is nothing negative about wanting to stop abuse against gay people. Nor doe the day of silence promote being gay. So I see them as 2 totally different issue.

Now a right wing religous person who support a lot of gay rights issues, in this case, I see no problem. If, however, we allow a religous group to make statements of belief at school then what is to stop say Satanic groups from wearing tshirts that say "Jesus is a lie" or somethign like that. What is to stop Islamic extremist from saying Be Islamic not Crusaders.

Just my 2 cents.

Randy said...

Crude, evil spell check....above is suppose to read...

As a right wing religious person who does NOT support many gay issue, I see no problem with the day of silence.

Michael said...

First, public schools should not be propagandizing about gay rights or other political issues, period.

Second, people should have some self respect and stop indentifying themselves publically and politically by what kind of sex acts they practice. That should be none of anyone's business and making it public (let alone the sum, substance, and crux of one's public persona) is just plain bad manners and is the sign of a self absorbed boor.

Flynn said...

Missscuri Democrat why is it okay for someone to say that people are born gay, but when someone says that the jury is out whether it's genetic or environmental, or a combination of both, that person is accused of pretending to be an "expert?" It's nice when you can have your cake and eat it too.

Your comment regarding christian conservatives is way out of line. I've never heard leaders of any leader of christian conservative groups trying to limit free speech because it's coming from someone who is gay. Christian conservatves can be accused of a lot of negative things but that isn't one of them. If anything christian conservative groups are extremely defensive of free speech and public religious practices, including non-christian practics.

IndyTerps said...

I have so many thoughts about this. First would be that there is a separation of church and state that keeps the bible out of schools for a reason. As a gay man who is very spiritual I don't have any attachment to what the bible says about homosexuality. That is important. So many groups, like the shirt-makers, think that if they could only convince me of what the bible says I'll be straight. I don't want to be straight. I don't remember choosing to be gay and at 32, I don't suppose I'll be mulling that over now.

Secondly, the Christians at that school aren't being harrassed for being Christians. We aren't feeding them to the lions these days. That is the point of the event in question. They have tried to turn a tolerance event into an argument...and succeeded.

Also, the point about free speech in schools being different is valid. Students can't wear clothes with profanity, I would imagine. Where's the student group standing up for their "I fucking rock" shirt? This is also pretty close to racism. Suppose that Christian group were also KKK, because they do think themselves Christian. Could they wear shirts that said, "Be white, not black"?

Doubtful.

What would be the best, I would think, would be to have some responsible and skilled adults stage a dialogue between these groups. There is a huge opportunity for discussion and growth in this. We all have to live with each other. Why not let these kids talk about what it means to respect differences instead of telling them to just not talk about it?

This may disjointed. I apologize for that. It is a hot topic for me, though.

Thanks for covering these things!

David Myers said...

Promote the gay lifestyle in schools but do not bring religours views? Of course this is the way public schools are going these days. This is why the private schools are growing
Remeber the girl who got into trouble by saying "Oh that is so Gay" ? Its funny to read some of the titles of old movies back in the 60's where the word Gay was never thought of like today.

Penny Culliton said...

I have been a GSA advisor (have been a HS teacher for 25 yrs) and have basically advised students that if they are going to participate in DOS, they should always be silent in social situations, but in the classroom, only if the teacher does not need them to speak. I do think, however,that the principal goes a bit too far when he says non-speaking students should be sent out of class. Why can't the teacher just apply his/her class participation policy?

David Myers said...

It might be a relief for the teacher for the students to be silant in class for a change. :)

HOOSIERS FOR FAIR TAX said...

Along with being "Gay & Happy", I've always thought the Indiana State House should consider sponsoring "Cross Dresser Fridays" for employees with another, more true side. It would cheer things up a bit over at the State House and the Governor did say there shall be no discrimination against the transgendered. I have a big place in my heart for their struggle to get to live true to themselves.
--Melyssa