• January 22, 2018

The First Amendment of the U.S. Constitution protects the right to free speech (among other critical rights, of course) and even speech that many of us find abhorrent.

Many find disrespecting the national flag or refusing to stand during the pledge of allegiance abhorrent but that is protected “symbolic speech.”

“It is poignant but fundamental that the flag protects those who hold it in contempt,” U.S. Supreme Court Justice Anthony Kennedy has written. In protecting flag protesters, can the government ban “disrespect” of those showing “disrespect” for our nation’s flag? Of course not. That is logically impossible.

According to the now-disbanded Edina High School Young Conservatives Club (EHSYCC) and its lawyers, however, this is what the Edina School District has done. And, in response to the school’s motion to dismiss, EHSYCC seeks to bring a summary judgment motion in its favor right at the start of the lawsuit.

It seems to us that a motion for summary judgment before the there is a factual record in a case is nearly impossible to imagine in the vast majority of lawsuits and, in EHSYCC’s case, more than most. (Ed. note (1/31/18): The school district agrees with us.)

“In the underlying action no discovery is necessary,” counsel for EHSYCC argues. “The underlying dispute concerns the interpretation and application of School District policies,” EHSYCC continues.

EHSYCC argues that the following school policy is unconstitutional on its face: “Anyone who does not wish to participate in reciting the Pledge of Allegiance for any personal reasons may elect not to do so. Students
and school personnel must respect another person’s right to make that choice.”

It seems to us that the constitutionality of this policy hinges on the way “respect” is enforced.

For example, it would seem to pose a constitutional problem if the policy prohibited criticism of other students’ protest. It would not seem to pose a constitutional problem if the policy simply provided that neither students nor school personnel could impede, interfere with, punish, or discipline students based on their exercise of their rights to sit during the pledge of allegiance, to refuse to recite the pledge, or refuse to salute the flag.

The key question obviously is what did EHSYCC members do? How did they “not respect” flag protesters at the school? Is this not a factual question? Did they threaten violence? Did they use racist hate speech? Did they intimidate students? Did they encourage the intimidation of students? Would these questions be relevant in evaluating their First Amendment right “not to respect” flag protesters? There is no factual record in the case. How can they prevail on a motion for summary judgment at the outset?

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