the First Amendment itself discriminates against viewpoints ?

At least that is what Judge Reinhardt of the Ninth Circus, oops sorry, Circuit Court of Appeals said in the recently decided case of Harper v. Poway Unified School Dist.

Prof. Volokh has this to summarizes the case:

Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, it said "Homosexuality is Shameful." The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.

Harper's speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" -- which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations -- are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."

In this latest step at political thought control, we have arrived at a point where regulation of viewpoint is now considered appropriate. Harper has an anti-homosexual viewpoint and his viewpoint can be excluded as a "verbal assault" upon the fragile ears and psyche of "vulnerable teenagers." From the text of the t-shirt in question, there may be a message hostile to homosexuals, but no more hostile to those who oppose homosexuality who must endure a policy the embraces that lifestyle--as apparently this school system did.

Among my many thoughts on this case is this? Why is a message, not targeted to any specific person, considered an verbal assault? A t-shirt that said, "Bobby Jones is a faggot" would no doubt be considered a verbal assault. On that ground, the school would be justified, may be not right but justified, in asking the wearer to remove the shirt. If the shirt said, "Kill Bobby Jones" then clearly the school is on much safer footing under Tinker.

More from Prof. Volokh:

The Gay-Straight Alliance has a constitutional right to argue that homosexuality is quite proper, that same-sex marriages should be recognized, that discrimination based on sexual orientation should be banned, and that antigay bigotry is an abomination. But when the other side of this debate "about controversial issues" wants to express its views, which will often have to rest on the theory that homosexuality is wrong, sorry, apparently it's not important to preserve student speech that expresses that view.

"[T]here is an equality of status in the field of ideas," the Supreme Court has said. "Under the First Amendment there is no such thing as a false idea." "The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." And yet according to Judge Reinhardt, the First Amendment itself discriminates against viewpoints that express hostility to minority races, religions, and sexual orientations.

The Supreme Court has indeed recognized that speech in K-12 public schools must be somewhat more restrictable than speech on the street. Tinker v. Des Moines Independent School District (1969) made clear that student speech might be restricted when it's likely to substantially disrupt the educational process. And sometimes speech that's hostile based on race, religion, or sexual orientation -- as well as speech that offends people for a wide variety of other reasons -- might indeed lead to substantial disruption.

But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn't categorically cast out certain student viewpoints from First Amendment protection. While the standard isn't without its problems, it is at least basically consistent with the First Amendment principle of "equality of status in the field of ideas."

The message from Judge Reinhardt is that minorities are deserving of more protection than anyone else, including their speech protections.

The fact that the Ninth Circus came to this conclusion is not all that surprising, since we as a nation have policies that do just that, give more protection to minorities than anyone else. It is called affirmative action, it is called Vote dilution theory, it is called racial gerrymandering. All of these programs and results favor those of a particular race or other minority over others.

Here I go, thinking that the First Amendemnt, which reads, "Congress shall make no law ... abridging the freedom of speech..." and which applies to the states as well, means no law restricting the freedom of speech. Where did we go wrong on this. Once again, the protection of freedom of speech is designed to protect that speech which is offensive, not that speech we agree with. Tyler Harper had to accept a school policy that endorsed homosexuality, that does not mean he has to like it and it doesn't mean he has to shut up. He has a right, even arguably, a responsibility to make all sides of the argument heard in the forum of ideas. But according to the Ninth Circus, he doesn't have the same protection because his viewpoint attacks a minority.

I am certain that Harper will appeal for a full rehearing by the Ninth Circus and perhaps the Supreme Court-- as he should.