In Chen v. Albany Unified School Dist., Judge Ronald Gould joined the panel opinion, but added the following; the opinion dealt with K-12 public schools' restrictions on student speech, where the government already has substantial latitude (which is what the panel focused on), but its logic expressly extends to the government as sovereign criminally punishing speech and not just to the government as educator:
I write separately to express my views on the topic of hate speech, disturbingly present in both the facts of the case before the panel and regrettably, a reemerging threat to society throughout the nation today. I reaffirm the viewpoint I stated when another case involving hate speech in schools came before this court: "Hate speech, whether in the form of a burning cross, or in the form of a call for genocide, or in the form of a tee shirt misusing biblical text to hold gay students to scorn, need not under Supreme Court decisions be given the full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms." Harper v. Poway Unified Sch. Dist. (9th Cir. 2006) (Gould, J., concurring in the denial of rehearing en banc), vacated on other grounds, 549 U.S. 1262 (2007). The continued prevalence of hate speech and crimes against American citizens and residents on the basis of race, ethnicity, religion, sexual orientation, gender identity, and disability is evidence of the enduring threat of hate crimes to the fabric of American democratic society and to the safety and security of individuals.
In light of this threat, I write to underscore that the First Amendment and Supreme Court precedent do not require courts always to strike down a government entity's attempts to prevent harm to their citizens—especially in the context of hateful speech at schools harming children.
The Supreme Court in Beauharnais v. Illinois (1952), upheld a criminal libel statute that sought to prevent the publications of items that subjected "citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots." Though the viability of the Beauharnais decision has been called into question by our sister circuits, the case has not been overturned and the Supreme Court's rationale focused on protecting the dignity of the enumerated class of citizens remains persuasive. {We have also previously expressed skepticism of Beauharnais. See Dworkin v. Hustler Mag. Inc. (9th Cir. 1989) ("We agree with the Seventh Circuit that the permissibility of group libel claims [discussed in Beauharnais] is highly questionable at best."). However, those decisions centered on the libel theory rationale within Beauharnais likely undermined by New York Times v. Sullivan (1964), while the majority opinion in Beauharnais also embraced a broad conception of the legislature's ability to regulate hate speech due to its pernicious effects on citizens' ability to participate fully in the democratic process as another basis for its ruling. This rationale has reemerged throughout the years since the Beauharnais opinion, see R.A.V. v. City of St. Paul (1992) (Stevens, J., concurring in the judgment).}
Courts should hesitate to question attempts by the government, through its elected bodies, to protect their constituents, and this deference is applicable both when the actions in question are undertaken at the federal level by the Congress of the United States and when actions to protect students are undertaken at the local level by an elected school board, such as in Albany, California.
