The cheerleaders' speech is protected because it is private student speech and not government speech. The Supreme Court stated that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Although coaches or other school officials cannot advocate for or against religion, students can.
It is clear from both state law and the school's own policies that when students speak at school-sponsored events, their speech is their own and is not attributable to the school district. Furthermore, the cheerleaders alone decide what messages to place on their banners. The supplies to create the banners, like the uniforms, are paid for with private funds. The speech is therefore private, fully protected speech.
When confronted with speech with which one disagrees, one can either: 1) try to have the speech censored; or 2) contribute to the free marketplace of ideas with more speech. The first option, which Mr. Mehta advocates, runs afoul of the First Amendment. The second is the approach of a free society; America has chosen this approach and made it the highest law of the land.
The cheerleaders in Kountze, Texas, took a courageous stand against their school district—and won. Although the case is not over yet, they won the right to religious expression on their banners for the remainder of the school year and will likely prevail at trial. This is a victory not only for the cheerleaders, but for free speech and the Constitution.
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