ACLJ Defends the American Flag in the Ninth Circuit

The American Center for Law and Justice (ACLJ), which focuses on constitutional law, is urging a federal appeals court to reconsider a ruling backing a decision by a California high school to ban the American flag. The ACLJ has filed an amicus brief – on behalf of 20 members of Congress and more than 84,000 Americans – urging the full panel of the U.S. Court of Appeals for the Ninth Circuit to hear the case.

The decision to ban the American flag by school officials was not only wrong but unconstitutional. A three-judge panel reached a flawed conclusion when it permitted school officials to unconstitutionally single out one side of a debate – punishing students who merely wanted to exercise their First Amendment rights. Instead of addressing the real issue at play in this case – threats of violence by a group of students – the appeals court panel backed the school’s decision to ignore those threats and move to silence their opponents. That is exactly why the full panel of the appeals court must consider this case.

The case stems from events at a San Jose-area high school during the Mexican independence celebration Cinco de Mayo. School officials ordered students who wore shirts displaying the American flag to turn them inside-out saying they feared the shirts would enflame the passions of Latino students celebrating the Mexican holiday. A three-judge panel of the 9th Circuit in February ruled that the school acted properly in banning the American flag.

Instead of banning the threats of violence and addressing those concerns, the school administrators ignored the troublemakers and trampled the free speech rights of other students who merely wanted to express their patriotism by wearing a tee-shirt displaying an American flag. Displaying the American flag is free speech and it is not permissible to stifle patriotic free speech in the face of anti-American threats.

In the amicus brief urging the entire 9th Circuit to take the case, the ACLJ’s argument is clear:

“In the public school context, while school officials possess authority to prevent substantial disruption of their school’s functions, that authority has its constitutional limits. This case, in fact, precisely demonstrates why schools cannot escape constitutional scrutiny even in the face of substantial disruption. The school officials’ actions in this case represent a perfect storm of unconstitutional action—by empowering a heckler’s veto through the use of viewpoint discrimination. School officials should not be permitted to single out and silence one side of a debate, while permitting the other side’s expression to continue without restriction, solely because the latter group of speakers threatened violence in reaction to the speech of the former. Such a decision empowers violence, incentivizes further disruption, and targets disfavored speech for punishment.”

The ACLJ represents 20 members of Congress in the brief: Steven Palazzo, Rob Bishop, Jim Bridenstine, Jeff Duncan, Blake Farenthold, Bill Flores, Randy Forbes, Trent Franks, Phil Gingery, Tim Huelskamp, Mike Kelly, Steve King, Jack Kingston, Doug LaMalfa, Cynthia Lummis, Jeff Miller, Joe Pitts, Scott Tipton, Randy Weber, and Lynn Westmoreland.

Representative Palazzo (MS-4) welcomed the ACLJ's involement in the case, stating: "Parents shouldn’t have to question whether students’ First Amendment rights will be protected when they send them to school every day. I am proud to partner with the ACLJ in this effort to defend students’ rights and ensure patriotic expression continues to be protected in the classroom and all walks of life."

Further, the ACLJ brief was also filed on behalf of the ACLJ’s Committee to Protect the American Flag, which consists of more than 84,000 Americans who seek to preserve the right of citizens of this nation, including public school students, to express themselves through peaceful, patriotic displays of the American flag.