Homobigots, T-Shirts, and Judge O'Scannlain

Good news: the Ninth Circuit ruled yesterday that school districts can ban homophobic t-shirts. And the right wing of the court isn't happy at all:

Five conservative federal appeals court judges accused their colleagues of promoting censorship Monday after the court refused to reconsider an appeal by a Southern California student barred by his high school from wearing an anti-gay T-shirt to class.

"School administrators are now free to give one side of debatable public questions a free pass while muzzling voices raised in opposition,'' Judge Diarmuid O'Scannlain said in an opinion also signed by the four other dissenters on the Ninth U.S. Circuit Court of Appeals in San Francisco.

To put that 'debatable public questions' remark in context, here's what the t-shirt says:

The front of Harper's shirt read, "Be ashamed, our school embraced what God has condemned.'' The back read, "Homosexuality is shameful,'' followed by a biblical citation.

Lovely.

Gay marriage is a 'debatable public question'. Anti-discrimination laws are a 'debatable public question'. Hate crime laws are a 'debatable public question'. Someone's existence is not. Race is not a 'debatable public question (imagine a t-shirt reading "Blackness is shameful"), gender is not a 'debatable public question', and sexual orientation is not a 'debatable public question'. In other words, O'Scannlain is completely full of shit.

Now, I'll admit that I do get uneasy in cases where civil rights collide with first amendment rights. This case, though, seems to me to be analogous to 'hostile environment' harassment cases, which recognize that to permit pervasive hostility against women (or racial or ethnic minorities or whatever) is to engage in discrimination. This is a case where words have potentially dire consequences. The sentiment on the t-shirt is so viciously hostile, and (I assume) shared by enough of the school population, that were it given free rein it could make school life impossible for the gay (or gay-friendly) students.

Which is kind of the intent: a school free of students the bigots deem 'shameful', whether they are forced to drop out or driven to suicide or otherwise purged from the ranks.

That's the speech Judge O'Scannlain wants to protect.

Now, I was prepared to give him the benefit of the doubt; I can respect principle even when I disagree with the conclusions. As it turns out, though, O'Scannlain is hardly the First Amendment absolutist he sounds like in his dissenting opinion. In the past, he has argued against free speech rights for performance artists and government whistleblowers, and in favor of free speech rights for potentially violent anti-abortion fanatics and landlords who discriminate on the basis of religion.

In other words, he's an activist judge who pretty much rules as an ideological conservative, and principle be damned. Just the sort of disgraceful behavior that, if he keeps it up, will probably get him appointed to SCOTUS.

[That's all, folks]