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 BibleI 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.
should be interpreted figuratively.
Big hat tip to Indiana Law Blog.