The Marketplace of Ideas and Hate Speech in Schools
Brian J. Bilford, Harper’s Bazaar: The Marketplace of Ideas and Hate Speech in Schools. Stanford Journal of Civil Rights and Civil Liberties, Vol. 4, 2008 Available at SSRN: http://ssrn.com/abstract=1125602
The following Note discusses the rationale of Harper v. Poway School District, a recent opinion of the United States Court of Appeals for the Ninth Circuit. In Harper, the court held that a student wearing a T-shirt bearing the message “Homosexuality is Shameful” could constitutionally be censored under Tinker, since it interfered with the rights of other students to be secure and to be let alone. In this Note, I argue that while Supreme Court precedent precludes the censorship of hate speech in public fora, the Harper decision is an attempt to prohibit hate speech in schools on the grounds that students are both captive and vulnerable in ways that adults subject to similar speech are not. While the court does not state the legal justifications for relying on these two factors in great detail, I argue that the captivity and vulnerability of a young audience are legitimate reasons for this distinction as a matter of both policy and law, although the result in this particular case is questionable. I also argue that this ruling reflects the legal and logical implausibility of a holding based on Tinker’s substantial disruption prong in circumstances where arguably disruptive hate speech is proffered in response to equally disruptive messages of tolerance condoned or expressed by the school.