Boy in a Prom Dress Highlights New Trend in Censorship

Yes, you read the title right, and, no, you did not accidentally click on The Onion.  According to the Associated Press:

LAKE GENEVA, Wis. - A high school senior who thought it would be funny to wear a dress to his prom was ticketed $249 for disorderly conduct, suspended for three days and banned from his last track meet.

According to the article, the police report says that the student was “dancing in a sexually provocative manner” (an image that might either make you laugh aloud or feel a little nauseated depending on your sense of humor) and was apparently, therefore, guilty of disorderly conduct.  To be clear, this is not a FIRE case since we strictly limit ourselves to higher education (we do not take high school cases), but it does point out a burgeoning trend in FIRE cases: the use of and abuse of the term “disorderly conduct.”  While I am skeptical that his behavior actually constituted disorderly conduct under the proper definition of that term, outside of this very silly case the term has been clearly abused to punish protected speech.  The incredible case of Tim Garneau at University of New Hampshire is only the most recent high-profile case where a student who was engaging in clearly protected expression was found guilty of disorderly conduct.  We are currently investigating several additional cases where the term may have been abused to punish clearly protected expression.

For those of who follow the history of censorship, it is interesting to watch how the rationales for suppression change from year to year and decade to decade.  At the turn of the previous century the primary argument was public decency, by mid-century it was often national security, for the last few decades it has been redefining troublesome speech as harassment, and now I suspect some are looking for a new angle to get at speech they dislike.  Fortunately, as cases like Hustler Magazine v. Falwell, 485 U.S. 46 (1988) demonstrate, if your new theory for punishing expression is clearly directed at the expression of ideas, the First Amendment will almost never tolerate it—no matter how clever the censors think they are.

Now, I am not sure if any of this discussion helps the boy in the black strappy dress.  If they had charged him with “lewd and lascivious” behavior he would have a hard fight and I have no doubt the school could have passed a constitutional rule requiring women to wear dresses and men to wear suits to the prom.  But today he gets to be the cross-dressing poster boy for my occasional look at new trends in censorship.