America’s most-reversed federal circuit court of appeals, San Francisco’s Ninth, has issued another doozy. Eugene Volokh writes in the Washington Post:

Today’s Dariano v. Morgan Hill Unified School Dist. (9th Cir. Feb. 27, 2014) upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)  (snip)

… the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption. There had been threats of racial violence aimed at students who wore such shirts the year before:

On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students. The groups exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting “USA.” A group of Mexican students had been walking around with the Mexican flag, and in response to the white students’ flag-raising, one Mexican student shouted “f*** them white boys, f*** them white boys.” When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.” Rodriguez removed the student from the area….

Volokh comments:

This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech.

It is also the excuse used by rapists when they say a girl was wearing provocative clothes.

The reasoning of the court rested on the Tinker decision, which held that free speech rights in schools are not absolute. However, the lessons being taught by this decision are appalling:

…behavior that gets rewarded gets repeated. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?

Would the Ninth Circuit uphold a heckler’s veto if students wearing rainbow tee-shirts were being threatened? How about if students wearing Mexican flags were being threatened by Caucasians? The question answers itself.

The next time Republicans control Congress and the presidency, it is time to break up the Ninth Circuit, and give the court jurisdiction over Northern California. The rest of the district should be given to a new circuit court to be established in Salt Lake City. Check the Constitution: it can be done.