So holds the Ninth Circuit in today’s Frudden v. Pilling (9th Cir. Feb. 14, 2014). (Disclosure: I briefed and argued the case, pro bono, for the plaintiffs.)
The Ninth Circuit had earlier held that a school could require students to wear clothing of a certain color and style — for instance, blue shirts and tan pants — even though it limited students’ ability to speak using, say, message-bearing T-shirts. But in Frudden, the court drew the line at uniforms that bear mottoes (in this case, “Tomorrow’s Leaders”). Requiring students to display a motto, the court said, is presumptively unconstitutional, just as requiring drivers to display a motto on their license plates was held unconstitutional in Wooley v. Maynard (1977):
RGES’s inclusion of the motto “Tomorrow’s Leaders” on its uniform shirts is not meaningfully distinguishable from the State of New Hampshire’s inclusion of the motto “Live Free or Die” on its license plates. Practically speaking, RGES compels its students “to be an instrument” for displaying the RGES motto. Had the RGES uniforms consisted of plaincolored tops and bottoms, as in Jacobs, RGES would have steered clear of any First Amendment concerns. However, by mandating the written motto on the uniform shirts, the RGES policy compels speech under Wooley….
[W]hile Defendants are correct that Wooley did not involve compelled speech in the public elementary school context, Barnette did. Moreover, while the First Amendment rights of public school students “are not automatically coextensive with the rights of adults in other settings” and must be “applied in light of the special characteristics of the school environment,” elementary school students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” …
[W]e do not believe the First Amendment analysis turns on an examination of the ideological message (or lack thereof) of “Tomorrow’s Leaders.” As the D.C. Circuit recently explained, “[t]he right against compelled speech is not, and cannot be, restricted to ideological messages.” Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 957 (D.C. Cir. 2013); accord, e.g., Forum for Academic & Institutional Rights, Inc., 547 U.S. at 62 (“[C]ompelled statements of fact … , like compelled statements of opinion, are subject to First Amendment scrutiny.”); Barnette, 319 U.S. at 634 (“Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous.”); Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013) (“[T]he Supreme Court’s case law suggests that ideological speech is not the only form of forbidden compelled speech.” (citing cases)).
The court also agreed with us that the exception in the uniform policy for uniforms of “nationally recognized youth organizations such as Boy Scouts and Girl Scouts on regular meeting days” made the policy content-based, and thus also presumptively unconstitutional (paragraph break added):
Similarly [to the situation in Carey v. Brown (1980), the language of the RGES policy’s exemption favors the uniforms of certain youth organizations over all other clothing that the students may choose to wear in the absence of the exemption. Further, the exemption explicitly favors the uniforms of the Boy Scouts and Girl Scouts over all other uniforms (e.g., those of the AYSO), and favors the uniforms of “nationally recognized” youth organizations over those of locally or regionally recognized youth organizations. Indeed, requiring national recognition implicitly favors the uniforms of youth organizations that enjoy widespread acceptance — although what degree of acceptance would qualify a youth organization as “nationally recognized” is unclear.
The determination concerning whether a given youth organization is “nationally recognized” — to some undefined degree — “cannot help but be based on the content” of the organization and its uniform “and the message it[s uniform] delivers.” See Regan v. Time, Inc., 468 U.S. 641, 648 (1984) (ruling that exception to statute prohibiting photographic reproductions of currency “presented constitutional problems of its own”). Therefore, we conclude that the RGES policy’s “exemption indicates a content-specific distinction between favoring certain clothing-related ‘speech.’”
The policy, the Ninth Circuit said, could still in theory be upheld under so-called “strict scrutiny” — i.e., if it is “narrowly tailored” to a “compelling government interest”; the Circuit therefore sent the case back down to the trial court for further argument on that issue. But this is an extremely demanding standard, and I think it’s hard to imagine that the motto requirement and the “nationally recognized youth organization” exception are really necessary to serve a compelling interest.
In any event, I’m pleased with the result. Sometimes it’s a lot of fun being a lawyer!