Now you see it, now you don’t — literally. From ABC affiliate KGTV in San Diego comes the story of a school bus driver whose constitutionally protected right to be a jerk was likely violated by the school district he works for and the state Department of Motor Vehicles.
The driver, identified as Shawn Calpito, had the vanity license plate shown on his personal vehicle.
The two-word expression seems innocuous enough until you say it out loud and recognize that the message it surreptitiously communicates is Nazi. This makes the expression hateful. But is it illegal?
According to the news story, Calpito was suspended by the San Diego Unified School District and ordered by the DMV to surrender the plates. Both organizations could find themselves on the receiving end of a lawsuit claiming they have violated Calpito’s First Amendment rights.
A precedent for this case was established for better or worse more than 35 years ago in the landmark Supreme Court decision in Smith v. Collin. The high court overturned an injunction by the Village of Skokie, Ill., against the National Socialist Party of America to peaceably assemble. The fact that the marchers planned to wear Nazi uniforms was morally repugnant to the residents of the village, one in six of whom was a Holocaust survivor.
In the ruling, the justices wrote:
[I]f a State seeks to impose a restraint [on First Amendment rights], it must provide strict procedural safeguards, including immediate appellate review…. Absent such review, the State must instead allow a stay. The order of the Illinois Supreme Court constituted a denial of that right.
The Illinois Supreme Court, which had already heard the case and ruled in favor of the plaintiff, revisited the complaint. Despite arguments by Skokie attorneys that seeing a swastika on display was tantamount to physical harm, the Illinois court — under instructions from the high court — held with the defendant. The use of the swastika, they wrote in their decision, is a symbolic form of free speech protected by the First Amendment. The court found, moreover, that the swastika itself did not constitute “fighting words,” as had been argued.
As to the San Diego kerfuffle, KGTV quotes a civil rights attorney named Jim McElroy as saying:
This is not what I would call a legitimate political belief, this is hatred. The Nazis annihilated six million Jews.
Parents in the school district are concerned that their children will be adversely affected by having a neo-Nazi drive them to and from school. One parent is quoted as saying:
He could influence them. He could say certain things. They know what they’re doing. They know how to brainwash. They know how to do these things.
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