The First Amendment Goes to the Prom

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8 Responses

  1. Juan says:

    Is speech against homosexuality ever protected in the same way? When would it be OK to host a private event like a dance and exclude certain behavior, like same-sex slow dancing? And if a viewpoint is more prevalent, does that mean it receives less protection because it “maps onto . . . publicness”?

  2. Todd says:

    Marc, Perhaps the closest case to some of the issues you raise is Brown v. Louisiana, 383 U.S. 131 (1966) in which African-American civil rights protesters entered the “whites only” reading room of the public library and requested a book. The specific message of inclusion/exclusion depended on Black persons taking an action prohibited to them, but allowed to Whites in the same location. Shameless plug: On inclusion/exclusion communicative expression, you may be interested in my piece on Hurley/Dale in 38 San Diego L. Rev. 565 (2001).

  3. Rhadamanthus says:

    What about the First Amendment rights of all the other young prom-goers? Why can’t they exercise their rights to freedom of association free of disruption by gay-rights activists? Nearly all of the young people wish(ed) to dress up, parade and dance with their friends, and commemorate their association in photographs showing all the participants in what is, whether or not so denominated by the court, traditional ceremonial garb.

    Why should the traditionalist students have to accommodate a publicity-seeking lesbian who wants to show up and deliberately, intentionally violate and traduce the traditions of the prom, and “ruin” the ceremony for everyone else (sort of like the way Jesse Vann threatened to disrupt the White House Medal of Freedom ceremony for his then-deceased father)?

    The Constitution does not give one citizen “more” or “stronger” First Amendment rights than another. Just because the prom would make a superlative backdrop for one student’s political protest doesn’t mean all the other students should sacrifice their enjoyment of traditional associational activity to provide a stage for that protester.

    Imagine an analogous case: suppose the prom organizers decided to hire a swing band, but a couple of students thought they would prefer punk rock, so they proposed to bring a hefty portable CD player (“boom box”) into the prom, set it down, and dance to it. Could they be excluded? Even if they claimed punk rock was essential to their social identities, and that they felt oppressed by being asked to dance only to swing?

    If the odd promgoer can’t bring her own music, why can she bring her own bizarre costume and use it– uninvited– to change the mood of all the group photos from nostalgic to comedic (or worse, for young people, risible)?

    It’s of no moment that the original prom was to be sponsored by the school. The school wouldn’t have to let someone in a short skirt carrying a badminton racquet and shuttlecock flounce onto the football field in the middle of a game. They don’t have to allow an equivalent disruption to a senior prom. Both football games and senior proms are group activities governed by traditional rules. Someone who doesn’t want to play by the rules can find some other outlet for her creativity.

    This case is easy as soon as you take note that the plaintiff has no greater claim to control the proposed forum than the defendants, and really, by counting noses, has a much smaller claim. If the plaintiff wants to cross-dress and dance, she should go to a club which welcomes such activity. The Federal Court should dismiss the case against the school and/or any “parents’ prom” defendants.

  4. Riley says:

    I just can’t help but say this. My friend and I were reading this post and we both can’t help but notice that this must go down in history as the most boring conversation about porn ever. Aside from that though, responding to Juan’s comments, there is a big difference between excluding untoward behavior as opposed to discriminating against someone based on sexual preference. Didn’t we settle this a long time ago with the Civil Rights movement. It’s almost as ridiculous as this story I read about employers firing employees over non-work related computer usage:

  5. NMissC says:

    Slight quibble: The parents did not testify or speak at the hearing on the preliminary injunction in McMillen’s case. The statement about the private prom was a representation made to the court by the school’s lawyers as I understand it.

    Which suggests there really may be hell-to-pay for them at the damages hearing.

  6. Ken Arromdee says:

    It seems to me like the “political message” argument is very contrived, because it pretends to be based on a general principle about political viewpoints, but it’s set up so that no other viewpoint would actually qualify. Seriously, can you think of any other possible way to express a viewpoint that the prom would have to accommodate under this court’s reasoning, that doesn’t amount to phrasing a discrimination case as a first amendment case?

  7. Juan says:


    Not sure how that is a response to my comments, perhaps you meant Rhadamanthus? In any case, it seems the school in this case was “excluding untoward behavior” and not discriminating based on sexual preference. The plaintiff wasn’t barred from attending, just from certain behaviors while attending.

    And as I recall, the Civil Rights movement was about race. Let’s not equivocate sexual preference and race. I’m not saying that discriminating on the basis of sexual preference is permissible, but it is a separate issue and the contours will likely be different, precisely for issues raised in suits like this one.