The Volokh Conspiracy blogged Pro-Taliban Speech Constitutionally Protected, Criticisms of Homosexuality Unprotected Here's an excerpt from Judge Reinhardt's short dissent in Lavine v. Blaine School Dist. (Jan. 2002); Judge Reinhardt was taking the view that a school improperly disciplined a student for writing a poem with a violent theme:
I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) ("[T]he First Amendment [is] the guardian of our democracy.") First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves
and proposed violence againstof one or more of our nation's officials or policies for any reason whatsoever.Except of course, according to Judge Reinhardt's more recent Harper v. Poway Unified School Dist., when the speaker is saying that homosexuality is shameful, or displaying a Confederate flag, or making any other "derogatory and injurious remarks directed at students' minority status
Why minority status? Why is it ok to criticize Christianity but not Judiasm or Islam. Do Muslim countries allow criticism of Islam, but not Christianity? Is it ok to criticize hetrosexuality, just not avoidance of it through abstinance, and not ciriticising homosexuality?such as race, religion, and sexual orientation" (even if the remarks deal with important public debates, aren't personally addressed to any particular person, are in response to expressions of contrary views, and haven't been found to create a substantial risk of disruption).
The First Amendment, you see, doesn't protect those viewpoints in public high schools. It protects Taliban sympathizers (of course except when they criticize minority religions, or minority sexual orientations). It protects "any other person who disapproves of one or more of our nation's . . . policies for any reason whatsoever." But it doesn't protect condemnation of homosexuality -- an important argument for those who want to explain why they disapprove of, say, the nation's policy on constitutional protection for same-sex sexual relations, or the state's policy on employment discrimination based on sexual orientation. It doesn't protect the Confederate flag, presumably because it's often seen as an expression of disapproval for the nation's civil rights policies. (The Confederate flag can also be seen as having other meanings, but I take it that the offensive meaning, at least today, relates to some degree of disapproval of civil rights policies, which is on very rare occasions actual endorsement of slavery and much more commonly a generalized defense of Southern white culture, including its sometimes racist strains.)
And presumably it doesn't protect speech that criticizes fundamentalist Islam, since that is of course a minority religion. The Taliban sympathizers can speak and criticize Americans and presumably Christians (but not Jews or gays) all they want; but Taliban opponents may not. That's because in the Ninth Circuit there's now a Judge-Reinhardt-created viewpoint-based First Amendment exception for speech that minority high school students find is "derogatory and injurious" towards their "race, religion, and sexual orientation."