Two Gainesville, Florida area families, the Sapps and the Boeckens, sued the Alachua County School Board (Florida) in federal court seeking protection for their children’s anti-Muslim hate speech in public schools. The American Civil Liberties Union of Florida represents the plaintiffs.
Wayne and Stephanie Sapp and Ludger and Heike Boecken filed the suit on behalf of their minor children who are students in Alachua County public schools. The complaint was filed on November 23, 2009 in the U.S. District Court in the Northern District Court of Florida (Gainesville Division).
The lawsuit alleges that the Sapp and Boecken children were disciplined for and prohibited from wearing t-shirts imprinted with the hateful statement “Islam is of the Devil”. The Sapps’ and Boeckens’ lawsuit seeks to have the school board’s policies that prohibit the wearing of the hate-speech imprinted t-shirts ruled unconstitutional. The lawsuit also asks the federal court to enter an order stopping the school board from prohibiting the wearing of the clothing displaying the hate messages.
WHAT IS FREEDOM OF SPEECH AND DOES IT APPLY TO HATE SPEECH?
The freedom of speech is a fundamental right in the United States. It is protected by the First Amendment of the U.S. Constitution and by similar provisions in state constitutions as well.
As a general principle it is easy to understand. Application of the free speech principle, however, can be complicated. When the speech being protected is pertains to equality, democracy, justice or other noble ideas it is easy to support. But what about speech that promotes discrimination and bigotry? The fact is that hate speech is protected under the First Amendment too. Frankly, it would not be much of a right if this were not the case.
Over the years the First Amendment has been marshaled in defense of flag burning, cross burning, pornography, a Nazi march in Skokie, Illinois (at the time a predominantly Jewish town of Holocaust survivors), and fascist skinheads assembling and promoting their white supremacist venom in public. Indeed, the First Amendment has a long list of very unsavory patrons.
While protecting hate mongers, racists and perverts is distasteful, the alternative is to fall prey to the tyranny of the majority and to the majority’s impulse to censor ideas with which it disagrees. Censorship in one’s own hands never seems dangerous, but the true appreciation of its menace is had when one contemplates handing over the power of censorship to one’s ideological nemesis. That is a frightening thought.
IS THE HATE SPEECH PROMOTED BY THE SAPPS AND BOECKENS PROTECTED?
The right to free speech under the First Amendment is very broad. It is not, however, an absolute right. The freedom of speech is limited by certain exceptions. Speech that constitutes “fighting words”, or that is obscene or which interferes with another fundamental right, for example, would fall outside of the protection of the First Amendment.
According to the First Amendment Center speech within public schools is not unlimited. First Amendment Center scholars note that minors are not accorded the same level of free speech rights as adults. Additionally, when the government is acting as an educator (which is precisely the case with a public school) it has more leeway to develop and implement speech policies. The overarching policy of a public school is teaching children in an environment that is safe and which is conducive to learning.
It is possible that the hate speech the Sapps and the Boeckens are promoting through their children’s attire falls outside of First Amendment protection. The Sapps and the Boeckens’ complaint repeatedly alleges that the t-shirts worn by their minor children contained “non-vulgar” and “non-obscene” messages. The plaintiffs are counting on their characterization of the messages (as “non-vulgar” and “non-obscene”) being taken as a matter of fact. Their characterization should not be accepted at face value. Their characterization should be vigorously challenged.
Is the statement “Islam is of the Devil” vulgar or obscene? If it is considered vulgar or obscene, then the Alachua County school board is well within its rights to deem the message inappropriate and prohibit its exhibition in school. This is the precedent established by the U.S. Supreme Court in Bethel School Dist. No. 403 vs. Fraser. In that case the majority of the Court concluded that:
Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.
The majority in Bethel also noted that:
The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order.
The Bethel case sets out the rules or the law to be applied in the Alachua County case. The question is only one of fact.
IS THE STATEMENT “ISLAM IS OF THE DEVIL” VULGAR OR OBSCENE?
Regardless of one’s proclivity vis-à-vis the First Amendment, most American Muslims would agree that the phrase “Islam is of the Devil” worn on a t-shirt by students in a public grammar school or high school would be seen as vulgar and obscene to fellow students who are Muslims. I would also hope it would be deemed vulgar and obscene by classmates of other faiths as well. Furthermore, the presence of such hate speech will inculcate lessons of divisiveness and incivility, both of which are antithetical to promoting “shared values of a civilized social order.”
WHAT CAN BE DONE TO UPHOLD ALACHUA COUNTY SCHOOL BOARD'S DECISION?
First and foremost, it is necessary for the Alachua County School Board to commit itself to zealously defending its actions. It is not a foregoing conclusion that Alachua County School Board will aggressively litigate this case. The resources and expertise of the ACLU are formidable. At the same time public schools across the nation are sorely cash strapped and as a result the vigor with which the school board battles in federal court may be dictated as much by finances as it is by its principles.
Furthermore, the case will hinge on whether the judge or the jury who ultimately hear this case at trial will find the statement “Islam is of the Devil” to be vulgar or obscene. This will, in turn, depend on how well integrated the local American Muslim community is with the interfaith and community organizations in the region.
Hopefully the American Muslim community in that region of Florida has relationships of friendship with the broader community. Hopefully the American Muslims of this particular region have allies in the interfaith community who know them, understand their religious values and know firsthand what it is that Muslims believe. Whether or not the “Islam is of the Devil” statement is vulgar or obscene is not an academic question. Bringing theologians to explain the articles of the Islamic faith and its roots in the Abrahamic tradition is not the solution.
This is a question that has to be answered from the heart and from the gut. In order for people of other faiths to share American Muslims’ sense of revulsion and disgust over this hate speech, they need to know American Muslims as real friends.
It will be up to Florida’s American Muslims to marshal their resources and their allies to aggressively defend against the Sapps’ and Boeckens’ hate speech lawsuit. Ideally the battle will focus on the core legal issues and will steer clear of any advocacy that promotes censorship. This is the kind of case where American Muslims stand to lose even in victory unless they are very thoughtful about how they tackle the crisis.
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