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Originally Posted by Kevin
So if on MLK Day, the Kappa Tappa Kegga at a public school stages an event where they have a lynching of a straw man off campus where they wave the Confederate Flag while burning the lynched straw man in effigy, chanting racist slogans, clamoring for a return of Jim Crow, that would be more protected by the First Amendment than some kids showing up to Taco Tuesday in a sombrero or dressed like cholos?
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Quite possibly. I'd suggest that the former is precisely the sort of speech the First Amendment exists to protect. As to the latter—what were they trying to say exactly? Anything?
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I don't think I would totally buy that, it doesn't seem consistent. The reading of the First Amendment, especially these days with the Roberts court, tends to be very broad.
If I had a client with this sort of issue, I'd kind of like my chances in a 1983 case.
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It's all going to depend on your judge(s), who likely won't be the Supremes. It might be covered speech, but I just don't consider it a slam dunk at all.
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