Nuxoll v. Indian Prairie School District: “”Be Happy, Not Gay” T-Shirt Protected By First Amendment

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Seventh Circuit opinion, authored by Posner, here. Below, some excerpts:

“The plaintiff is one of the students who disapprove of homosexuality. Some of them participate in a”Day of Truth”(see www.dayoftruth.org (visited Apr. 5, 2008)) held on the first school day after the”Day of Silence.”They recommend that supporters wear a T-shirt that reads”day of truth”and”The Truth cannot be silenced.”Two years ago a coplaintiff (who has since graduated and as a result is no longer seeking injunctive relief) wore a shirt that read”My Day of Silence, Straight Alliance”on the front and”Be Happy, Not Gay”on the back. …

“… The plaintiff challenges the rule, as well as its application in this case. He believes that the First Amendment entitles him to make, whether in school or out, any negative comments he wants about the members of a listed group, including homosexuals (a group defined of course by sexual orientation), provided they are not inflammatory words:that is, not”fighting words,”words likely to provoke a violent reaction and hence a breach of the peace. …

“… The expression”Be Happy, Not Gay”is a play on words, since”gay”used to be an approximate synonym for”happy”but now has been appropriated to designate homosexual orientation. One cannot even be certain that it is a”derogatory”comment; for”not gay”is a synonym for”straight,”yet the school has told us that it would not object to a T-shirt that said”Be Happy, Be Straight.”It wouldn’t object because to advocate X is not necessarily to disparage Y. If you say”drink Pepsi”you may be showing your preference for Pepsi over Coke, but you are not necessarily deriding Coke. It would be odd to call”Be Happy, Drink Pepsi”a derogatory comment about Coke. But context is vital. Given kids’ sensitivity about their sexual orientation and their insensitivity about their preferences in soft drinks, the Pepsi-Coke analogy misses the mark. The plaintiff, like the students who participate in the”Day of No. 08–1050 13 Truth,”is expressing disapproval of homosexuality, as everyone knows. No one bothers to talk up heterosexuality who isn’t interested in denigrating homosexuality. The plaintiff himself describes”Be Happy, Not Gay”as one of the”negative comments”about homosexuality that he considers himself constitutionally privileged to make. He is in a better position than we are to interpret the meaning of his own comment. Nevertheless,”Be Happy, Not Gay”is only tepidly negative;”derogatory”or”demeaning”seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says”Be Happy, Not Gay”would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech. We are therefore constrained to reverse the district court’s order with directions to enter forthwith (the”Day of Truth”is scheduled for April 28) a preliminary injunction limited however to the application of the school’s rule to a T-shirt that recites”Be Happy, Not Gay.”The school has failed to justify the ban of that legend, though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light. …”

–Ann Bartow

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