I
sympathize with the young Texas public school cheerleaders who want to spread
the Christian gospel right out on the field at middle and high school football
games. They believe that Jesus is watching the game from up in heaven and is on
their side. After all, they don’t understand why anyone might object. They don’t
understand the United States Constitution or the First Amendment Establishment
Clause.
I
can forgive them for their youthful ignorance. But I can hardly forgive the
Kountze Independent School District for caving in
to their demands after initially prohibiting them from displaying banners
containing religious messages during their cheerleading routines at
school-sponsored events. They should
know better.
The banners represent the private speech of
the students who made them, asserts Beaumont attorney David Starnes, who
represents the cheerleaders. The school district, however, still contends that
it retains the right to restrict content because the banners are government
speech.
Well
of course the banners are government speech – not private speech. Of course the
school has the obligation to prohibit religious government speech. The cheerleaders
just like the football players are representatives of the school. Their activities
are school sponsored.
But
Thomas Brandt, the attorney representing the
district, said that the district would not forbid any banners that were
religious in nature, but would do so if they contained language that was
offensive or in poor taste.
Huh?
The school can sponsor religious speech on the part of the cheerleaders but can
censor all other speech? That’s preposterous! Jesus is OK, but swastika’s or “WHITE
POWER” signs aren’t, is that it? If it really is private speech then the school
cannot pick and choose what is acceptable and what is not; that would amount to
viewpoint discrimination which the First Amendment prohibits.
If
the school district permits Jesus banners, then it will have to permit any and
all banners whether offensive or not. Suppose one of the cheerleaders, an atheist
perhaps, held up a large banner declaring that: “NOTHING FAILS LIKE PRAYER,” or
“GOD IS IMAGINARY.” I don’t think for one minute that the school would permit
that. I think the school cheerleading coach would confiscate those banners and kick
that student off the squad.
This
also begs the question: Is it OK for the football players to display religious
messages on their helmets and uniforms? Would that also be considered private
speech? How about the coaching staff and
the referees? They’re all representatives of the school participating in school
sponsored events. Shouldn’t they be allowed to display religious banners? Would
that be private speech? No! Absolutely not!
The
fact is that all those banners are perfectly OK if they’re displayed by
students and private citizens in the bleachers, up in the stands or anywhere else
off the field where no one could conceivably confuse them with government sponsored
speech. In those circumstances it is definitely private speech protected by the
First Amendment Free Exercise Clause which must not be censored.
What's not permissible under the First Amendment is public school sponsored private cheerleaders for Jesus.
What's not permissible under the First Amendment is public school sponsored private cheerleaders for Jesus.
"Of course the school has the obligation to prohibit religious government speech."
ReplyDeleteOnly if the First Amendment has been repealed.
Doh. I misread what you wrote to read "prohibit religious private speech."
ReplyDeleteYou are, of course, correct that if the public speech of private individuals magically becomes "government speech" by virtue of having religious content, the school has an obligation to prohibit it.
There's nothing magical about it, Tom. Public speech of private individuals is protected by the First Amendment. Private individuals can espouse religion all day long in the public square. The government must not infringe upon that right.
DeleteBut when private individuals, e.g. teachers, are representing the government, what they teach in the school classroom is government speech whether it is religious in nature or not. It's not private speech. The school authorities have the obligation to regulate it appropriately. Public school teachers have no First Amendment right to teach whatever they want.
Likewise, when private student individuals put on their identical school football, or cheerleader, or marching band uniforms, they are privileged to participate in a school sponsored activity; they represent the school, the government, just like the teachers. They're not engaging in a private activity, therefore any speech in connection with it is government speech and the school has an obligation to regulate the content.