Scott Walker will never be accused of displaying a high regard for the First Amendment.
The Wisconsin governor who tried to close the state Capitol to mass protests against his anti-labor policies, and who then engineered a rewrite of rules so that veterans, grandmothers, teachers and firefighters were arrested for singing, has offered ample evidence of his disregard for the rights to speak freely, to assemble, to petition for the redress of grievances
So it came as a surprise when Walker suddenly announced that First Amendment concerns had led him to sign a new Wisconsin law that makes it significantly harder to get schools to drop Indian logos, mascots and team names that Native Americans, educators and community members have identified as objectionable. Indeed, Walker has adopted a position that reinterprets the US Constitution’s free speech protection in a far more adventurous way than the folks who are currently arguing about the controversial statements of Duck Dynasty patriarch Phil Robertson.
Walker readily admits that many Wisconsinites view the school nicknames as “seriously offensive.” And he says he personally supports “moving away” from the use of them.
In a letter to Wisconsin’s tribal leaders, the governor wrote: “I share many of your concerns about some of the mascots and nicknames used in Wisconsin and across America. If it were up to me personally, I would seek viable alternatives that were not offensive to Native Americans.”
So why didn’t Walker veto the measure—which Wisconsin Indian Education Association spokeswoman Barbara Munson decried as “institutionalized racism”—and just let existing law stand?
Walker says it has something to do with the First Amendment.
“If the state bans speech that is offensive to some, where does it stop?” asked Walker. “A person or persons’ right to speak does not end just because what they say or how they say it is offensive.”
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But a school district is not a person, like Duck Dynasty’s Robertson, who was suspended from the A&E program after making statements that drew loud objections from civil rights groups. Robertson’s supporters have countered criticisms from the National Association for the Advancement of Colored People and the Human Rights Campaign, among others, by arguing that, as an individual citizen, Robertson has every right to say what he thinks.
Nor is a school district a private enterprise, like A&E, which has faced threats of boycotts from Americans who are uncomfortable with Robertson’s statements.
A school district is a public entity, which is supposed to serve all the people in a community.
“School districts are creatures of the state, bound to abide by state standards,” Milwaukee attorney Brian Pierson. who had helped defend the existing state law in court, explained to The Milwaukee Journal Sentinel.“A school district doesn’t have a First Amendment right to adopt an Indian mascot any more than it has a First Amendment right to adopt the swastika as school symbol or ‘white supremacy’ as school slogan
The issue never was—and is not now— “a person or persons’ right to speak.”
In fact, when Walker signaled he would make a First Amendment argument for his decision to sign the legislation, the American Civil Liberties Union of Wisconsin objected.
“This is a bogus appropriation of the First Amendment,” explained executive director Chris Ahmuty. “The governor apparently does not understand that the First Amendment protects citizens from government censorship. Government programs are not allowed to offend, harm or otherwise discriminate against citizens on the basis of the First Amendment. The First Amendment simply doesn’t apply when it’s the government taking action.”
Noting that “school team names, mascots, logos and all that go along with them are the responsibility of the public school district,” Ahmuty explained that it was entirely appropriate for a public school district or the state Department of Public Instruction to take steps to address offensive names.
“Why would a public school district want to harm some of its students?” asked Ahmuty, who added, “Free speech is no justification.”
