Free Free Expression Expression Rights of Rights of StudentsStudentsBy David L. Hudson Jr. By David L. Hudson Jr.

Student free-speech Student free-speech examplesexamples

Can a student wear a t-shirt with a Can a student wear a t-shirt with a religious, anti-gay message? religious, anti-gay message?

Can a student criticize his teacher and Can a student criticize his teacher and principal online on his own computer principal online on his own computer without repercussions? without repercussions?

Can a student write a news editorial in a Can a student write a news editorial in a school-sponsored student newspaper about school-sponsored student newspaper about underage drinking and drug use? underage drinking and drug use?

Text of First Amendment Text of First Amendment

““Congress shall Congress shall make no law make no law … … abridging the freedom of speech …” abridging the freedom of speech …”

But, “no law” really doesn’t mean no law. But, “no law” really doesn’t mean no law. Unprotected categories (obscenity, Unprotected categories (obscenity,

fighting words, etc.) fighting words, etc.) Clear and present danger to incitement Clear and present danger to incitement Particular places (military, public Particular places (military, public

employment and schools) employment and schools)

West Virginia v. BarnetteWest Virginia v. Barnette (1943)(1943)

““If there is any If there is any fixed star in our fixed star in our constitutional constitutional constellation it is constellation it is that no official, high that no official, high or petty, can or petty, can prescribe what shall prescribe what shall be orthodox in be orthodox in politics, nationalism, politics, nationalism, religion, or other religion, or other matters of opinion.” matters of opinion.”

Tinker v. Des Moines Tinker v. Des Moines Independent Comm. Sch. DistIndependent Comm. Sch. Dist. .

(1969) (1969) Several students wear black armbands Several students wear black armbands

to protest U.S. involvement in Vietnam to protest U.S. involvement in Vietnam War. War.

School officials learn of impending School officials learn of impending protest and pass no-armband rule. protest and pass no-armband rule.

Students still wear armbands to school Students still wear armbands to school and are suspended. and are suspended.

The The Tinker Tinker standard standard

School officials School officials can censor can censor student student expression only if expression only if it “materially it “materially disrupts classwork disrupts classwork or involves or involves substantial substantial disorder or disorder or invasion of the invasion of the rights of others.” rights of others.”

What is a “substantial What is a “substantial disruption?”disruption?”

Must be a “reasonable forecast” Must be a “reasonable forecast” of disruptionof disruption

““undifferentiated fear or undifferentiated fear or apprehension of disturbance is apprehension of disturbance is not enough to overcome the not enough to overcome the right to freedom of expression.”right to freedom of expression.”

Tinker standardTinker standard

Can school officials reasonably forecast that Can school officials reasonably forecast that student expression will create a student expression will create a substantial substantial disruption disruption or material interference with or material interference with school activities or invade the rights of others? school activities or invade the rights of others?

Has student expression (i.e. – T-shirt) led to Has student expression (i.e. – T-shirt) led to fights at school? fights at school?

Has the student expression led to the shutting Has the student expression led to the shutting down of the school computer lab or the down of the school computer lab or the cancelling of classes? cancelling of classes?

What about language in What about language in Tinker of “Tinker of “Invades the Invades the

Rights Rights of Others” of Others” Never really explained by the court. Never really explained by the court.

The 9The 9thth Circuit ruled that school officials Circuit ruled that school officials could prohibit a student from wearing t-could prohibit a student from wearing t-shirts with religious-based, anti-gay shirts with religious-based, anti-gay messages because it would invade the messages because it would invade the rights of gay and lesbian students. The rights of gay and lesbian students. The U.S. Supreme Court has never told us U.S. Supreme Court has never told us when student speech invades the rights of when student speech invades the rights of others --- not a clear standard. others --- not a clear standard.

Terrorist T-shirtTerrorist T-shirt

NRA Gun ShirtNRA Gun Shirt

Bethel School District v. FraserBethel School District v. Fraser, , 478 U.S. 675 (1986) 478 U.S. 675 (1986)

"I know a man who is firm -- he's firm in his pants, he's "I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- butfirm in his shirt, his character is firm -- but most . . . of all, most . . . of all, his belief in you, the students of Bethel, is firm.his belief in you, the students of Bethel, is firm.

Jeff Kuhlman is a man who takes his point and pounds it Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue andin. If necessary, he'll take an issue and nail it to the wall. nail it to the wall. He doesn't attack things in spurts -- he drives hard, He doesn't attack things in spurts -- he drives hard, pushing and pushing untilpushing and pushing until finally -- he succeeds.finally -- he succeeds.

            Jeff is a man who will go to the very end -- even the climax, Jeff is a man who will go to the very end -- even the climax, for each and every one of you.for each and every one of you. So vote for Jeff for A. S. B. So vote for Jeff for A. S. B. vice-president -- he'll never come between you and the best vice-president -- he'll never come between you and the best ourour high school can be."high school can be."

Bethel School Dist. No. 403 v. Bethel School Dist. No. 403 v. FraserFraser (1986) (1986)

““The undoubted The undoubted freedom to freedom to advocate unpopular advocate unpopular and controversial and controversial views in schools and views in schools and classrooms must be classrooms must be balanced against balanced against the society’s the society’s countervailing countervailing interest in teaching interest in teaching students the students the boundaries of boundaries of socially appropriate socially appropriate behavior.” behavior.”

Fraser: Offensive Speech Fraser: Offensive Speech SilencedSilenced

The The Fraser Fraser standard: school officials can standard: school officials can regulate student speech is vulgar, lewd or regulate student speech is vulgar, lewd or plainly offensive. plainly offensive.

FraserFraser: “The undoubted freedom to advocate : “The undoubted freedom to advocate unpopular and controversial views in schools unpopular and controversial views in schools and classrooms must be balanced against and classrooms must be balanced against society’s countervailing interest in teaching society’s countervailing interest in teaching students the boundaries of socially appropriate students the boundaries of socially appropriate behavior.” behavior.”

Drugs Suck T-shirtDrugs Suck T-shirt

Marilyn Manson t-shirt caseMarilyn Manson t-shirt case

Student wears a Marilyn Manson t-shirt Student wears a Marilyn Manson t-shirt to school. The front of the shirt depicts to school. The front of the shirt depicts a three-faced Jesus. The back of the a three-faced Jesus. The back of the shirt depicts the word “BELIEVE” with shirt depicts the word “BELIEVE” with the letters “LIE” highlighted. the letters “LIE” highlighted.

Student is punished. Student is punished. Boroff v. Van Wert City Board of Boroff v. Van Wert City Board of

EducationEducation, 220 F.3d 465 (6, 220 F.3d 465 (6thth Cir. 2000). Cir. 2000).

Majority in Majority in Boroff Boroff

““the record demonstrates that the the record demonstrates that the School prohibited Boroff’s Marilyn School prohibited Boroff’s Marilyn Manson t-shirts generally because Manson t-shirts generally because this particular rock group promotes this particular rock group promotes disruptive and demoralizing values disruptive and demoralizing values which are inconsistent with and which are inconsistent with and counter-productive to education.” counter-productive to education.”

Hazelwood School District v. Hazelwood School District v. KuhlmeierKuhlmeier, 484 U.S. 260 (1988) , 484 U.S. 260 (1988)

School principal censors two stories School principal censors two stories in school newspaper (produced as in school newspaper (produced as part of journalism class). One deals part of journalism class). One deals with teen pregancy; another deals with teen pregancy; another deals with impact of divorce upon teens. with impact of divorce upon teens.

Students sue, relying on Students sue, relying on Tinker Tinker “substantial disruption” standard. “substantial disruption” standard.

HazelwoodHazelwood standard standard

““Educators do not Educators do not offend the First offend the First Amendment by Amendment by exercising editorial exercising editorial control over the style control over the style and content of student and content of student speech in school-speech in school-sponsored expressive sponsored expressive activities so long as activities so long as their actions are their actions are reasonably related to reasonably related to legitimate pedagogical legitimate pedagogical concerns.” concerns.”

Anti-Hazelwood Laws (state)Anti-Hazelwood Laws (state)

Arkansas (1995)Arkansas (1995)California (pre-Hazelwood)California (pre-Hazelwood)Colorado (1990)Colorado (1990) Iowa (1989)Iowa (1989)Kansas (1992)Kansas (1992)Massachusetts (1988)Massachusetts (1988)Oregon (2007) Oregon (2007)

Trilogy Trilogy for Nearly 20 Years for Nearly 20 Years

Hazelwood standard – applies to Hazelwood standard – applies to school-sponsored speech school-sponsored speech

Fraser – applies to student speech Fraser – applies to student speech that is vulgar and lewd. that is vulgar and lewd.

Tinker – applies to most other Tinker – applies to most other student speech. student speech.

Bong Hits 4 Jesus Case Bong Hits 4 Jesus Case

Morse v. FrederickMorse v. Frederick (06-278) (06-278)

High school student in Alaska skips High school student in Alaska skips school and attends Olympic torch relay school and attends Olympic torch relay that runs on public street near school. that runs on public street near school. He displays banner that reads “Bong He displays banner that reads “Bong Hits 4 Jesus.” School principal tears Hits 4 Jesus.” School principal tears down banner and suspends student for down banner and suspends student for 10 days (allegedly doubling suspension 10 days (allegedly doubling suspension after he mentioned the First after he mentioned the First Amendment and Thomas Jefferson). Amendment and Thomas Jefferson).

Bong Hits (cont.) Bong Hits (cont.)

The Court creates a “promoting drug The Court creates a “promoting drug speech exception” to the trilogy, speech exception” to the trilogy, writing that schools can “restrict writing that schools can “restrict student expression that they student expression that they reasonably regard as promoting reasonably regard as promoting illegal drug useillegal drug use.” .”

Bong Hits (cont.) Bong Hits (cont.)

The Court did rule that Fraser “should The Court did rule that Fraser “should not be read to encompass any speech not be read to encompass any speech that could fit under some definition of that could fit under some definition of ‘offensive.’ After all, ‘offensive.’ After all, much political much political and religious speech might be and religious speech might be perceived as offensive to some.perceived as offensive to some.””

Thus, -- some offensive speech (of Thus, -- some offensive speech (of non-sexual nature still protected!) non-sexual nature still protected!)

Violent Student Violent Student Expression/True ThreatsExpression/True Threats

Is the Expression a Is the Expression a True ThreatTrue Threat? ?

If a true threat, it is unprotected speech. If a true threat, it is unprotected speech. True threats are not protected by the First True threats are not protected by the First Amendment. Amendment.

Even if the expression is not a true threat, Even if the expression is not a true threat, can it be prohibited under the can it be prohibited under the Tinker Tinker standard? standard?

Definitions of True ThreatsDefinitions of True Threats

Would a reasonable person believe that an Would a reasonable person believe that an objective, reasonable recipient of the objective, reasonable recipient of the statement would interpret the language to statement would interpret the language to constitute a threat? constitute a threat?

Would a reasonable recipient interpret the Would a reasonable recipient interpret the material as a serious threat of harm? material as a serious threat of harm?

Factors in Determining Factors in Determining Whether Expression is a Whether Expression is a

True ThreatTrue Threat The The reaction of the recipient reaction of the recipient and other and other

listeners; listeners; Whether the threat was Whether the threat was conditionalconditional;; Whether the threat was Whether the threat was communicated communicated

directly to the recipientdirectly to the recipient; ; Whether the maker of the statement had made Whether the maker of the statement had made

similar statements similar statements in the past; in the past; Whether the victim had reason to believe that Whether the victim had reason to believe that

the maker of the statement had a the maker of the statement had a propensity propensity to engage in violence. to engage in violence.

True ThreatsTrue Threats

Liberty v. Security Liberty v. Security

Columbine Columbine

James Lavine and Case of Stolen James Lavine and Case of Stolen PoemPoem

Lavine v. Blaine School District and Lavine v. Blaine School District and Doe v. Pulaski CountyDoe v. Pulaski County

Confederate flagConfederate flag

Billy is proud of his Southern heritage. He Billy is proud of his Southern heritage. He wears a Confederate flag jacket to school. wears a Confederate flag jacket to school. He doesn’t mean to offend other students. He doesn’t mean to offend other students. However, several students complain that However, several students complain that the jacket is insensitive and offends them. the jacket is insensitive and offends them.

The principal orders Billy to remove the The principal orders Billy to remove the jacket or go home. The principal fears the jacket or go home. The principal fears the jacket could exacerbate racial tensions at jacket could exacerbate racial tensions at the school, which has had some racial the school, which has had some racial tension. However, school officials have tension. However, school officials have allowed students to wear clothing which allowed students to wear clothing which contained other racially-tinged symbolscontained other racially-tinged symbols. .

Underground PressUnderground Press

A student in Milwaukee wrote an A student in Milwaukee wrote an anonymous article for the school’s anonymous article for the school’s underground newspaper. The article underground newspaper. The article was entitled “So You Want To Be A was entitled “So You Want To Be A Hacker” and purportedly explained how Hacker” and purportedly explained how to “hack the school’s gay ass to “hack the school’s gay ass computers.” When the administration computers.” When the administration found out who the author was, the found out who the author was, the student was expelled for one year, student was expelled for one year, arguing that the article “endangered arguing that the article “endangered school property.”school property.”

Awful InternetAwful Internet

Frank, a public high school student created a Frank, a public high school student created a webpage on his home computer that criticized the webpage on his home computer that criticized the school principal and teachers with crude and vulgar school principal and teachers with crude and vulgar language. The student’s homepage contained a language. The student’s homepage contained a hyperlink to the school’s webpage. hyperlink to the school’s webpage. Several students, upset over the sites content, Several students, upset over the sites content, accessed Frank’s homepage at school and showed accessed Frank’s homepage at school and showed the school’s computer teacher. The computer teacher the school’s computer teacher. The computer teacher then showed the school principal who was outraged. then showed the school principal who was outraged. The principal suspended the student for 10 days The principal suspended the student for 10 days because of the offensiveness of the speech. The because of the offensiveness of the speech. The principal did not speak to any other students before principal did not speak to any other students before deciding to take disciplinary action against the deciding to take disciplinary action against the student. student.