John Leo
Last week was a tough one for Stephen Reinhardt, the most liberal judge on the most liberal federal circuit (9th). The Supreme Court agreed to hear the state of California's appeal in the "buttons" murder case.

A San Jose man, Mathew Musladin, was convicted of murdering his estranged wife's fiance in 1994. But last October, Judge Reinhardt ordered him released unless the state promptly grants him a new trial. Writing for the court, Reinhardt ruled -- brace yourselves -- that the trial was unfair because three members of the victim's family had shown up in court wearing buttons displaying the victim's photograph. Reinhardt acknowledged that no Supreme Court precedent was involved, but said the buttons were "an impermissible factor."

On Thursday, the 9th Circuit issued another peculiar ruling, written by Reinhardt, that has just as good a chance of being overturned by the Supreme Court as the "buttons" decision. In a 2-1 split, the court ruled that a California student, Tyler Chase Harper, had no First Amendment right to go to school wearing a T-shirt condemning homosexuality.

In response to a "Day of Silence" sponsored by the Gay-Straight Alliance at Poway High School in Poway, Calif., Harper wore a shirt that said, on the front, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, "Homosexuality Is Shameful 'Romans 1:27.'" The principal ordered Harper to take off the shirt. Harper refused to comply and sued. He argued that the purpose of the "Day of Silence" was to "endorse, promote and encourage homosexual activity" and that he was entitled to use his T-shirt message as a rebuttal. He cited his First Amendment rights to free speech and freedom of religion.

Much T-shirt jurisprudence turns on the question of whether direct threats or the likelihood of severe disruption or violence are involved. In this case Reinhardt and his colleague Judge Sidney R. Thomas argued that T-shirt messages could be excluded from First Amendment protection if they strike at a "core identifying characteristic of students on the basis of their membership is a minority group."

John Leo

John Leo is editor of and a former contributing editor at U.S. News and World Report.

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