The PJ Tatler

Supreme Court Declines to Hear Free Speech Dispute Over Banning American Flag on Cinco De Mayo

The Supreme Court declined to hear a case where students were banned from wearing an American flag T-shirt on Cinco de Mayo at a California high school because administrators believed it might cause violence.

The court’s inaction let stand a lower court ruling that safety and security at the high school trumped free speech rights.

In essence, the decision implies that Hispanic students are unable to control their anger when they see an American flag on a day honoring Mexicans’ heritage, so others’ free speech rights must be curtailed.


The court declined to hear an appeal filed by three students at Live Oak High School in the town of Morgan Hill, south of San Francisco. School staff at the May 5, 2010, event told several students their clothing could cause an incident. Two chose to leave for home after refusing to turn their shirts inside out.

The school had been experiencing gang-related tensions and racially charged altercations between white and Hispanic students at the time. School officials said they feared the imposition of American patriotic imagery by some students at an event where other students were celebrating their pride in their Mexican heritage would incite fights between the two groups.

Lawyers for the students said that the fear that the T-shirts would offend others did not trump free speech rights because the act of wearing the shirts did not rise to the level of incitement to violence.

Three of the affected students – Daniel Galli, Matt Dariano, and Dominic Maciel – were involved in the lawsuit, which was filed on their behalf by their parents.

In the February 2014 ruling, the San Francisco-based 9th U.S. Circuit Court of Appeals said officials did not violate the U.S. Constitution’s First Amendment, which guarantees freedom of speech. School officials acted out of legitimate concerns of violence when they sent a handful of students home for refusing to change their American flag-embellished apparel, the court said.

It is the expectation of violence that is most disturbing. Gangs don’t need an excuse to cause trouble and the idea that they would be more likely to pick fights if they saw an American flag being worn is ridiculous. Even if it were true, where are the authorities? If they’re alert for trouble already, wouldn’t they be able to head off altercations as they would during a normal school day?

Note that when the principal banned the flag T-shirts there had been no violence against the students to that point  in the school day.  In fact, the principal had no reason to ban the shirts other than a desire to cover the school’s behind if violence did break out.

Students learned a valuable lesson in this incident: fear and freedom don’t mix very well — and if you’re going to indulge in the former, you can forget about enjoying the latter.