Letter from Two Lawyers: The 9th Circus Court of Appeals


To the Ninth Circuit Court of Appeals:

With much dismay, we have read your absurd decision on the First Amendment’s right of free speech when applied to students in a public school, and wondered if you were referring to the same First Amendment that we were instrumental in creating. As many in your America ask, “were you on mind altering drugs when you wrote this?” Our heads were spinning in disgust when we read it, and seriously wondered if any of you studied law or the Constitution. If one were to follow your illogic, there is essentially no right to free speech. If a judge in our time wrote this gibberish, we would have impeached him for either violating his oath to protect the First Amendment, or for concluding he is not fit to sit on the bench.

We did not have public schools in our America (thank God after observing your failing system), but we will try to analyze your decision in the context of your times.

Let’s analyze the facts first. Students wear an American flag on their T-shirts in school on Cinco de Mayo day and the school is concerned that Mexican students would find it offensive and that it could lead to violence. As a result, the school told the students they could not wear it. You live in a very strange America to say the least.

We had to look up what Cinco de Mayo is because it occurred after our time. Cinco de Mayo (May 5) is the day in 1862 when the Mexicans defeated the French . That much we got, but this is what we did not get at all – what does this have to do with American History, and why would it be celebrated in the United States? Have Americans in 2014 gone completely mad that they celebrate an event that had nothing to with their own history? We are also confused because why would Mexican citizens be attending school in your state of California and not in Mexico? We also do not get how anyone attending an American school could be offended by it. If anyone is offended by a symbol of America, then they should also be offended by attending an American school paid for by American tax dollars.

Even if they were offended, why should anyone care if they or anyone else is offended by an American flag. If they do not like the American flag, then we suggest they remove themselves from our shores and attend a public school in another country paid for by their citizen’s taxes.

As maddening as the facts are, your decision is even more absurd. You ruled that the school has a right to limit free speech if it determines it could be disruptive of decorum in the school. We do not necessarily have a problem with this, depending upon the circumstances. We agree that even Constitutional rights are not absolute. The ad nauseum saying that someone can’t yell fire in a crowded theater (when there is none) is consistent with the First Amendment. However, the reasoning the school used, and which you supported, to suppress the free speech of the students wearing the T-shirts is not only asinine but inconsistent with the First Amendment.

Let’s analyze your gem of great legal reasoning more closely. If a student is offended by another’s free speech and threatens or commits violence against the person exercising it, the school then has the authority to silence the free speech of the student, as opposed to punishing the alleged offended student for threatening to cause a ruckus. What world do you people live in where common sense is non-existent that permits this upside down logic? After observing the logic of the school officials who came up with this rationale, we understand why your public schools are such a disaster. The next thing we will learn is that your public schools do not have the time to teach American History or civics because it spends the time on more important subjects – climate change.

Do any of you geniuses wearing black robes understand that there is no constitutional right not to be offended? Do you see that alleged right anywhere in the Constitution, because we know it isn’t there. We find your decision to be offensive, but that is not because of a constitutional right. It is because we have logical minds that tells us fools such as yourselves should not be deciding Constitutional issues because of your total lack of understanding on what it means; we could obtain a better reasoned decision from a blacksmith without any legal training.

Furthermore, do you not realize that the primary purpose of the First Amendment is to protect speech another finds offensive or disagrees with? It does not solely exist to permit speech in the situation where everyone hearing it agrees with its contents, a situation that is virtually non-existent in the real world. If this were the case, there would be no need for it to be protected in the first instance and including a right of free speech in the Bill of Rights to be applied only in this situation would render it excess meaningless verbiage serving no purpose.

As our colleague, Ben Franklin accurately noted, if one had to be certain that something he wrote is not offensive to someone, there would be nothing to print. Do you not realize that if the person allegedly offended, who has no constitutional right to demand that he not be, therefore gets a unilateral veto vote to silence the free speech of another by threatening violence?

In such a case, then in truth and in practice free speech becomes non-existent; whether or not it is exercised is solely determined by mob rule.

Let’s take your absurd decision outside of the school, and see where it would take us.

Suppose the two of us wish to speak at a rally on a controversial subject, such as advocating the Declaration of Independence. As we are walking toward the podium, British loyalists in the crowd start shouting, threatening to fire upon the crowd with their muskets, if we are permitted to speak because they are offended by what we are about to say. The sponsor of the rally, sensing potential violence, does not demand the loyalists shut up or threatens to throw them out so that the crowd can hear us speak, but instead walks over to us and demands that WE not speak in order to avoid a riot that we did not even incite. If you do not see how absurd this is, and how it turns the First Amendment on its proverbial head, by allowing others to solely determine who can speak, then you people are either more stupid than we even imagined, must be on mind altering drugs, despise the Bill of Rights or are totally ignorant of the entire purpose of why we included it in the Bill of Rights.

We are debating which is more outrageous – students who find the American flag offensive or a school, and your court, which prohibits a constitutionally protected right not to be silenced by mob rule… which has no constitutionally protected right of not being offended?

Regardless, one thing is certain. The republic, which we helped create, cannot endure much longer when there are students who find an American symbol offensive and schools, backed up by constitutionally ignorant courts, permit a constitutional right to be trumped by a heckler’s veto. Congratulations are not in order because you have destroyed the right to free speech that we spent many hours debating, and eventually creating.

Regrettably yours,

Jimmy Madison
Tommy Jefferson

PS- As we stated in a previous letter to another judge, we are not using our formal historical names because we wish to appear as hip celebrity types, as America’s political class does now, demeaning their office by appearing regularly on T.V., as if they were entertainers, instead of real leaders who solve problems. Even if we had TV in our time, we would not have appeared yucking it up when our country faces serious problems.

Jefferson and Madison