Images of weapons are free speech, not violence

Images of weapons are free speech, not violence

Orange Coast College doesn’t care about the First Amendment. It banned Young Americans for Freedom (YAF) from displaying a banner reading “Don’t Tread on Me: 2nd Amendment Since 1789” and depicting two rifles.

As UCLA Law Professor Eugene Volokh notes, the college did so by claiming the banner violated its anti-gun policy. But that policy’s language bans guns or toy guns, not depictions of guns. So it logically doesn’t even apply to the banner at all. The college cited a policy titled “WEAPONS PROHIBITED ON DISTRICT PROPERTY,” which reads:

Firearms, knives, explosives or other dangerous objects, including, but not limited to any facsimile of a firearm, knife, or explosive, are prohibited on District property, at the colleges, or any college satellite location.

The banner is not a “weapon.” And as Professor Volokh, an expert on both the First Amendment and firearms regulations, points out, a mere depiction of a firearm is not the same thing as a “facsimile” of a firearm (which would include things like a toy gun, or a replica of a gun, but not a drawing of one). It a mere depiction constituted a “facsimile,” then the college would be in violation of its own anti-gun policy. That’s because the Orange Coast College sports teams are the Pirates, and their logo includes a drawing of a pirate with a dagger in his mouth — which is a prohibited facsimile of a knife, if you accept the college’s position that the YAF banner depicting rifles was a prohibited facsimile of a rifle.

Trending: Weirdest yet? In 48 hours, Biden TWICE says Latinos are diverse, ‘unlike African-American community’

The college has blatantly violated the First Amendment’s clearly-established free speech rights of its students. It is not as if this is a difficult issue. Harmless depictions of weapons can’t be banned, even if someone views the depiction as threatening. That violates free speech.

In 1998, a federal appeals court, in a 10-to-2 vote, found that the University of Minnesota violated clearly-established First Amendment rights when it removed images of history professors wielding swords from a campus display case. It didn’t matter that the campus affirmative-action officer absurdly viewed the images as a threat. The images were protected speech even though the campus affirmative-action officer “stated that she considered the photographs to constitute sexual harassment” because they were posted after a “written threat” had been made against a feminist professor, making the display of the images “insensitive” to the professor. This was true even though the campus display case was a non-public forum where many speech restrictions are permitted. (See Burnham v. Ianni, 119 F.3d 68 (8th Cir. 1998)).

Even in elementary schools, where students have weaker free speech rights than college students, students have the right to display images of firearms on T-shirts. (See, e.g., Schoenecker v. Koopman (E.D. Wis. 2018) and Newsom v. Albemarle County School Board, 354 F.3d 249 (4th Cir. 2003)).

Orange Coast College’s action appears to be a pretext for discriminating against a disfavored speaker. Discrimination against a speaker is viewpoint discrimination that violates clearly-established First Amendment rights, according to the federal appeals court with jurisdiction over Orange Coast College. (See Giebel v. Sylvester, 244 F.3d 1182 (9th Cir. 2001)).

Depicting firearms is not the same thing as depicting violence. But even if it were, the college could not ban the YAF banner. Depictions of violence are protected by the First Amendment.

Depictions of violence are not the same thing as committing or threatening violence. Thus, the California Supreme Court reversed on First Amendment grounds the conviction of a high school student who wrote a poem saying, ‘‘I am dark, destructive, and dangerous’’ and ‘‘I can be the next kid to bring guns to kill students at school,’’ since he did not intend the statements as a threat. Although the student’s English teacher, and prosecutors, saw this as a threat, the California Supreme Court, applying its own independent judgment, found otherwise. (See In re George T., 93 P.3d 1007 (Cal. 2004)).

Similarly, a college’s ‘‘workplace violence’’ policy was found to violate the First Amendment, when it was applied to the writings of a professor who celebrated imaginary violence against his college president, such as ‘‘dropping a two-ton slate of polished granite on his head,’’ and made references to ‘‘go[ing] postal.’’ (See Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001)).
Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.”