Legal Commentary

Support for Restricting the Speech of Students Who Wear American Flags to School on Cinco de Mayo

By Eugene Volokh

According to a local CBS TV station,

About 85 mostly Hispanic students staged a noon protest march through Morgan Hill on Thursday, one day after five students at Live Oak High School were sent home after showing up in clothing with American flags on Cinco de Mayo.

The protesters supported the school?s decision ....

Kathleen Sullivan, a school board trustee, said Live Oak experienced problems on Cinco de Mayo last year. She said some students had complained to the principal and vice principal that they had felt intimidated by students waving American flags.

In response to those complaints, school officials had asked students not to provoke other students by wearing or waving flags this year, Sullivan said....

The boys [who wore the flags] said they had no intention of sparking conflict. At least two of them said they are part Hispanic....

[Back to today?s protesters:] ?I think they should apologize ?cause it is a Mexican heritage day,? student Annicia Nunez said. ?We don?t deserve to get disrespected like that. We wouldn?t do that on Fourth of July.? ...

Naturally, I think those who want to protest in favor of suppressing others? rights to speak themselves have the right to speak; but I think that the cause in which these 85 students were marching was a bad cause. Wearing the flag images was, as I argued yesterday, both legally protected and not disrespectful (see also here).

The wearing of the American flag probably did express some disagreement with the wearing of Mexican flags. But disagreement does not necessarily equal rudeness or lack of respect, and it didn?t do so here: It simply represented part of a long-standing and worthy American tradition of polite debate (here, polite symbolic debate) in public places, including polite debate on cultural issues and identity politics issues.

Full post as published by The Volokh Conspiracy on May 07, 2010 (boomark / email).