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Putnam County, WV: Judge Rules in Favor of Student in First Amendment Case
June 13, 2005
PEN USA applauds U.S. District Judge John T. Copenhaver Jr. for ruling that a high school student’s clothing is protected by the First Amendment.
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Franklin Bragg - a student at Hurricane High School - wore clothing depicting the Confederate flag, and was punished under the school’s policy against racist language/symbols or graphics. This policy specifically names the Confederate flag (or “Rebel flag”
as a symbol of racism.
After Bragg was punished for his choice of clothing, he sued the school district with help of the American Civil Liberties Union in April of this year. By May, Judge Copenhaver Jr. ruled that the principal had violated Bragg’s First Amendment rights by punishing him for his clothing.
Copenhaver cited lack of evidence on the school’s part that there was racial tension associated with the flag in Hurricane High School specifically. Bragg’s friend and fellow student, African-American Lisa Adkins, testified that the shirt did not bother her or other black students at Hurricane High.
According to an article by David L. Hudson Jr.’s on the First Amendment Center’s website, Copenhaver pointed out a “sea of interpretations about what the flag represents,” and said, “there are a variety of innocent flag uses that would be silenced by the broadly worded policy.” The judge also noted that the principal was acting with “a remote apprehension of disturbance, rather than a specific and significant fear of disruption.” It was also noted that the school singled out the Confederate flag but allowed students to wear other potentially racially charged symbols, such as Malcolm X t-shirts.
West Virginia ACLU Executive Director Andrew Schneider was quoted as saying, “The court recognized that allowing some expressions of political speech by students while banning others is a flagrant violation of the First Amendment. We hope that the school will use this as an opportunity to teach students about their constitutional rights and encourage debate over future controversial subjects before resorting to censorship.”
Chair of Freedom to Write Domestic and First Amendment lawyer Stephen Rohde, said, “Where as here a person wears or displays a symbol that may be offensive to some, but does so in a peaceful, non-violent manner, he or she is protected by the First Amendment. In 1989, in a decision upholding constitutional protection for flag burning, Supreme Court Justice William Brennan wrote that ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’”
PEN USA lauds Judge Copenhaver’s sound decision in defending the First Amendment rights of students at Hurricane High School. Copenhaver saw the difference between peaceful expression of opinion and outright racism, when he cautioned that if someone were to use the flag as a “tool for… intimidations, or trampling upon the rights of others” he might not have ruled the same way. However, Bragg’s choice to wear clothes depicting the flag was a peaceful and harmless choice, and PEN USA supports him and the judge’s decision.
(source: http://www.firstamendmentcenter.org/news.aspx?id=15405)
Recommended Action:
Write Judge John T. Copenhaver Jr., praising his ruling in support of the First Amendment.
Honorable John T. Copenhaver, Jr.
United States District Judge
P. O. Box 2546
Charleston, WV 25329
Phone: (304)528-7583