School Claims Student Has No First Amendment Right Against Censorship

School Claims Student Has No First Amendment Right Against Censorship

California’s Brawley Union High School District insists it can forbid Christian students from mentioning their faith in Jesus Christ, claiming that if they allow a student to speak publicly, then that student is merely an agent of the California state government, and as such forfeits all First Amendment rights.

This is an update to Breitbart News’ June 20 story on Brooks Hamby, who graduated this year as salutatorian from the high school. Hamby is a committed Christian who wanted to offer inspirational quotes from the Bible to his fellow students, and also a word of prayer to thank God, and asking that he bless all Hamby’s classmates with wisdom and success for whatever lies ahead for each of them.

As Breitbart News explained in our initial report, Brawley Union High School insisted on seeing his speech first for prior approval, and rejected it. They also rejected his second draft because it still mentioned Jesus Christ by name. And they rejected his third because it still included the word “Bible.”

Finally, his fourth draft instead referenced “the bestselling book of all time.” After he delivered that speech, the school objected yet again because Hamby referenced Jesus as “my savior,” and so it is possible a negative mark would be placed on his sterling academic record.

Hamby retained Texas-based Liberty Institute, which sent a letter described in our initial report, warning the school that its censorship violated Hamby’s free-speech rights under the First Amendment, and requesting both a meeting with the district’s superintendent to discuss the situation and a public apology to Hamby.

Brawley Union High School instead retained an outside law firm, which sent a shockingly defiant and hostile 10-page letter on July 11 to Liberty Institute. The letter argues that speeches by students are not private speech, because, “the District exercises control over the valedictory/salutatory speeches and only permits students to deliver content its administrators have deemed appropriate.”

In other words, the school denies that giving a student the microphone creates what constitutional law refers to as a “limited public forum.” And the law firm cited precedent from the U.S. Court of Appeals for the Ninth Circuit (which has jurisdiction over California), which held allowing “sectarian” (meaning “Christian”) speech “would have constituted government endorsement of religious speech.”

Instead, the lawyers cite a Ninth Circuit case where the appeals court held that such student speakers are supposed to showcase the school system’s success, and so Hamby and other student speakers are merely the “school district’s authorized representative.” Thus, they argue, the student becomes an agent of the state government, and can only say what the government deems appropriate. Such censorship would not be limited to religious expressions. The school necessarily claims the right to forbid a student from criticizing Barack Obama, or the student expressing support for the Second Amendment, or socialism, or condemning radical Islamic suicide bombers. The school says the student has no right of free speech.  

Yet the Ninth Circuit is entirely subordinate to the United States Supreme Court, which held in its 1969 case Tinker v. Des Moines Independent Community School District that students do not forfeit their First Amendment rights when they attend public school. The school claims that these Ninth Circuit cases (and California Supreme Court cases the lawyers cite) do not violate Tinker, but experts on the First Amendment should reject that claim.

Nonetheless, the school’s lawyers claim that the law is such a slam-dunk against Hamby that if Liberty Institute filed suit, it would be “unreasonable, frivolous, meritless, or vexatious” litigation that would entitle the school to have a federal judge order Hamby and his lawyers to pay the school’s attorney fees.

Breitbart News spoke on July 12 with several lawyers from Liberty Institute. Senior Counsel Jeremy Dys noted the significant amount of time that had to go into the letter, and made the half-joking comment that the school had made “at least a $10,000 down payment on litigation.”

“I can’t believe they’ve signed what appears to be at least a three-year contract,” Dys added, referring to the school’s law firm. “It seems they’re settling in for the long haul. They probably either see deep pockets in this school, or they’re expecting a big payday at the end of all this.”

Dys and his team now need to consider their options with Hamby to decide whether to now move forward with a lawsuit, since Hamby is preparing to start his freshman year at one of America’s top universities. “This is a really good kid,” Dys added on a personal note to Breitbart News. “This young man has a very bright future; I think he’s going to do great things down the road.”

A decision on whether to take the matter to the U.S. District Court for the Southern District of California is expected in the next 60 days.

Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.