“A too confident sense of justice,” said Reinhold Niebuhr, “always leads to injustice.”

That’s a point to ponder in the fast-unfolding atmosphere of illiberalism and intolerance by gay-rights backers. A reader writes to comment on the earlier piece about GLSEN bullying over the Day Of Silence protest it’s pushing within schools:

I feel like you are missing an obvious connection to the story you posted today, probably because you are not aware of it. We have already had a court case about the Day of Silence (Harper v. Poway), in which a student silently protested the pro-homosexuality message of the school by wearing a shirt with a contrary message and was punished for it. The language the student used was probably not a good method for effective evangelization (to say the least), but surely falls within any reasonable definition of free speech.

Summary from Eugene Volokh, no conservative Christian:


Ninth Circuit ruling, even with their biased recounting of the facts, it still sounds like the school acted very poorly:


The Ninth Circuit’s refusal to hear the case en banc:


“Hate speech, whether in the form of a burning cross, or in the form of a call for genocide, or in the form of a tee shirt misusing biblical text to hold gay students to scorn, need not under Supreme Court decisions be given the full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms.”

“Perhaps some of us are unaware of, or have forgotten, what it is like to be young, belong to a small minority group, and be subjected to verbal assaults and opprobrium while trying to get an education in a public school, or perhaps some are simply insensitive to the injury that public scorn and ridicule can cause young minority students. Or maybe some simply find it difficult to comprehend the extent of the injury attacks such as Harper’s cause gay students. Whatever the reason for the dissenters’ blindness, it is surely not beyond the authority of local school boards to attempt to protect young minority students against verbal persecution . . .”

Thanks for this, reader. I had not known. In the new gay-rights liberalism, all people are equal, but some are more equal than others. From Volokh’s assessment:

The majority “reaffirm[s] the importance of preserving student speech about controversial issues generally.” But, according to the constitution, this First Amendment principle somehow omits speech about controversial issues having to do with race, religion, or sexual orientation.

The Gay-Straight Alliance has a constitutional right to argue that homosexuality is quite proper, that same-sex marriages should be recognized, that discrimination based on sexual orientation should be banned, and that antigay bigotry is an abomination. But when the other side of this debate “about controversial issues” wants to express its views, which will often have to rest on the theory that homosexuality is wrong, sorry, apparently it’s not important to preserve student speech that expresses that view.

“[T]here is an equality of status in the field of ideas,” the Supreme Court has said. “Under the First Amendment there is no such thing as a false idea.” “The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” And yet according to Judge Reinhardt, the First Amendment itself discriminates against viewpoints that express hostility to minority races, religions, and sexual orientations. [Emphasis is Volokh’s — RD]

The Supreme Court has indeed recognized that speech in K-12 public schools must be somewhat more restrictable than speech on the street. Tinker v. Des Moines Independent School District (1969) made clear that student speech might be restricted when it’s likely to substantially disrupt the educational process. And sometimes speech that’s hostile based on race, religion, or sexual orientation — as well as speech that offends people for a wide variety of other reasons — might indeed lead to substantial disruption.

But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn’t categorically cast out certain student viewpoints from First Amendment protection. While the standard isn’t without its problems, it is at least basically consistent with the First Amendment principle of “equality of status in the field of ideas.”

Yet the majority specifically refrains from relying on this principle (and Judge Kozinski’s dissent points out that on the facts of this case, there wasn’t enough of a showing that the speech would likely cause disruption). Instead, Judge Reinhardt takes some unelaborated remarks by the Supreme Court about the First Amendment’s not protecting student speech that “intrudes upon . . . the rights of other students,” and fashions from them a constitutionally recognized right to be free from certain kinds of offensive viewpoints [Emphasis Volokh’s. — RD] (not a right that is itself directly legally enforceable, but a right that the school may choose to assert as a justification for its viewpoint-based speech restrictions).

This is a very bad ruling, I think. It’s a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be free from offensive viewpoints. It’s a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.

It really is the case that the government is taking sides here, and it’s taking sides against cultural conservatives, Christian and otherwise. Of course in a private school, administrators have far more leeway about what they allow and don’t allow in terms of expression. No one should question the legal right of the L.A. private prep school in my earlier example to do what it’s doing. What I question, and question strongly, is the politicization of the classroom, and the cultural left’s — in particular, GLSEN’s — turning classrooms into culture-war battlefields.

Pete Wehner writes today, on the Brendan Eich and related matters:

This all could get pretty nasty pretty quickly, and intensifying the culture wars isn’t in anyone’s interest. Civility is, as Stephen Carter has written, a precondition of democratic dialogue. There ought to be rules of etiquette, even (and perhaps especially) in public and political discourse. Asking for civility is quite different from insisting on agreement, and absence of agreement is a case for further (and better) debate, not putting an end to it.

When the dust finally settles, we still have to live together and occupy the same nation, the same airwaves, the same soccer fields and schools and workspaces. Surely treating others with a certain degree of dignity and respect shouldn’t be too much to ask of those who oppose gay marriage and those who support it.

Let me repeat: “A too confident sense of justice always leads to injustice.”