The number of Supreme Court cases related to freedom of speech is staggering, as is the number of cases related to hate speech. Despite the large number of cases that relate to this kind of speech, the Supreme Court, as well as other federal courts, have consistently held that government cannot regulate the content of speech, despite how offensive it may be to some people. However, it reserves the right for government to regulate speech that is injurious to other parties. For example, the extreme speech of a white supremacist that inflicts actual harm, or even the threat of harm, as in Virginia v. Barry Elton Black can be regulated, just as the extreme speech of a black supremacist. However, just because the government does not like certain content does not give it the right to regulate speech.
“The ideas of the Klan may be propagated. Communists may speak freely and run for office. The Nazi Party may march through a city with a large Jewish population. People may criticize the President by misrepresenting his positions, and they have a right to post their misrepresentations on public property. People may seek to repeal laws guaranteeing equal opportunity in employment or to revoke constitutional amendments granting the vote to blacks and women. They may do this because ‘above all else, the First Amendment means that government has no power to restrict expression because of its message or its ideas…’” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis)
Though the court maintained this assertion, they have also maintained that some aspects of speech may be regulated. For example, Justice Sandra Day O’Connor held in Virginia v. Barry Elton Black that though cross burning may be symbolic speech, in some instances the state has the right to regulate it. The state can regulate this hate speech where it is accompanied by intent to intimidate, or create fear of bodily harm. In the court’s judgment, the statute in the state of Virginia outlawing cross burnings was overturned, only because the statute held that all cross burnings were done with an intent to intimidate. Banning all cross burnings, she said, represented discrimination based on the content of the speech, not the harmful effects of the speech. She says this because cross burning was a large symbol of the KKK, and used at private meetings between members. Thus, the cross is a form of symbolic speech, used to funnel and draw anger. “The prima facie provision makes no effort to distinguish among these different types of cross burnings. It does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim” (Virginia v. Barry Elton Black)
(Virginia v. Barry Elton Black background: This case began with a KKK rally led by the respondent, Barry Black. He had gathered 25-30 people on a property in Virginia. The rally took place in a highly visible area by the side of the road, and people at the original trial testified that they were scared by the display, which included negative speech directed at black people. When Black objected to his trial on first amendment grounds, the original court paid no heed, and found black guilty and fined him 2,500 dollars. He subsequently appealed the decision all the way to the Supreme Court)
The 7th Circuit Court of Appeals carried a similar message in American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis. Here, the court overturned an Indiana statute that regulated what it called “pornography.” The statute chose to define pornography as a practice that discriminates against women. All of these types of “pornography” are considered illegal, no matter if they are forms of art or not. Under this statute, books like the Iliad would have to potential to be regulated. On the other hand, content that does not discriminate against women, no matter how explicit, would not be regulated. The American Booksellers sued the Mayor on the basis of the unconstitutionality of the statute, which the court held discriminated based on the content of the speech, making the statute unconstitutional. “We do not try to balance arguments for and against an ordinance such as this. The ordinance discriminates on the ground of the content of the speech. Speech treating women in the approved way—in sexual encounters ‘premised on equality’ – is lawful no matter how sexually explicit. Speech treating women in the disapproved way – as submissive in matters sexual or as enjoying humiliation – is unlawful no matter how significant the literary, artistic, or political qualities of the works taken as a whole. The state may not ordain preferred viewpoints in this way. The Constitution forbids the state to declare one perspective right and silence opponents” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis).
The case continues to discuss whether or not the law is constitutional because it protects people from the implications of the speech. Some amici argues in this case that pornography is not an idea; pornography is the injury. The case examines both the injury to society, and the injury to the woman in the disputed pornography. In the first, it says that though it may cause “harm” in society, doesn’t all speech carry these same consequences? “Sexual responses are often unthinking responses, and the association of sexual arousal with the subordination of women, therefore may have a substantial effect. But almost all cultural stimuli provoke unconscious responses. Religious ceremonies condition their participants. Teachers convey messages by selecting what not to cover… People may be conditioned in subtle ways. If the fact that speech plays a role in a process of conditioning were enough to permit government regulation, that would be the end of freedom of speech” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis). Such a construction for the regulation of speech, as the justices point out, would lead to governments ability to easily discriminate based on the content of the speech.
For the actual harm that the speech puts on women in the movies, the opinion states that more often than not, the harm isn’t real. “The more immediate point, however, is that the image of pain is not necessarily pain” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis). The last argument that could potentially justify the regulation of this type of speech is the argument that it is “low value” speech, ranking with obscenity, which the Supreme Court has allowed to be regulated. However, the court argues that some “pornography” has high value. “True, pornography and obscenity have sex in common. But Indianapolis left out of its definition any reference to literary, artistic, political or scientific value” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis). The court, however, argues that the fact that no such mention was made represents the creation of a state-sponsored point of view, which goes against the first amendment.
The Supreme Court, in Wisconsin v. Todd Mitchell, played with the idea of whether the first amendment is breached in cases of discrimination, where only bigoted thought is punished and no others. This case arose because Todd Mitchell and his friends decided to beat a white boy, leaving him unconscious, and in a comma for four days. Mitchell was prosecuted, and given a penalty enhancement based on the fact that the victim was selected on the basis of race.
Though the Wisconsin Supreme Court ruled that the statute was unconstitutional for punishing what “the legislature has deemed to be offensive thought,” the court disagreed. It decided that such an enhancement was constitutional. The court, consistent with other rulings, says that a physical assault is not a form of speech and can therefore be regulated. “A physical assault is not by any stretch of the imagination expressive conduct protected by the first amendment” (Wisconsin v. Todd Mitchell). Thus, like other rulings, “speech” that causes harm cannot be protected by the first amendment. Also, the court argues, the state is right to inflict a greater punishment on these crimes generated from bigoted beliefs, because such crimes backed by these beliefs generate retaliatory action and the imposition of harm on other parties. “The Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the state and its amici, bias-motivated crimes are likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest” (Wisconsin v. Todd Mitchell).
In Hustler Magazine and Larry C. Flint, Petitioners, v. Jerry Falwell, the Supreme Court faced yet another first amendment dilemma. The magazine, in a parody, portrayed Jerry Falwell, a controversial preacher, as a drunk and immoral. They made up an interview with him about his “first time,” which he said was with his mother in an outhouse. Falwell filed suit, claiming libel and the infliction of emotional distress. The initial jury ruled in favor of Falwell on the infliction of emotional damages, awarding him $100,000 in compensatory damages. However, they ruled against him in libel, saying that the ad could not be reasonably construed as fact.
The respondent wanted the court to find that the state should protect him from having to suffer emotional distress for “speech that us partially offensive and intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved,” the case says. However, it overturned the “emotional harm” statute, making it illegal to sue based on the fact that speech caused emotional distress. The court ruled this way because, again, it wanted to prevent against the regulation of the content of speech. Who decides what is emotionally injurious is usually the person that is injured, making anything said against him able to be regulated. This is also consistent with the previous rulings discussed in that it refuses to regulate something intended for emotional harm. However, it will step in and allow regulation of speech that carries bodily harm or threat of bodily harm. Something that is emotionally hurtful comes nowhere near this constitutional standard set by the Supreme Court.
In conclusion, thought the cases brought before the court have been diverse, the court has maintained its precedent, set by judgments of the past. One can reasonably expect that the court will continue to uphold its basic precedent as the cases continue. The court will continue to support the virtues of free speech, no matter the content, unless this speech creates bodily harm or the threat of bodily harm.
by Juan Forrer
Monday, February 23, 2009
Sunday, February 22, 2009
Supreme Court: Student Speech
The First Amendment of the Constitution states that, “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Does this freedom of speech extend to students? Throughout American history the right to freedom of speech amongst students has been challenged and redefined by the Supreme Court. Do students relinquish their constitutional rights when they are on school property or attending a school sponsored event? Do school administrators have the right to restrict the speech of their students, depriving them of the freedoms guaranteed to the general public by the government?
In December 1965, a group of adults and students in Des Moines, Iowa decided to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season. The principals of the Des Moines schools met and decided to implement a policy in which any student wearing an armband would be asked to remove it, and if they refused they would be suspended until they would return without the armband. Petitioners John Tinker, a 15 year-old, Mary Tinker, a 13 year-old, and 16 year-old Christopher Eckhardt wore their armbands, were suspended, and did not return to school until after New Years. The petitioners and their parents filed a complaint in the United States District Court, asking for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from disciplining the petitioners, and seeking nominal damages. The District Court dismissed the complaint, upholding the constitutionality of the school authorities' action on the grounds that it was reasonable in order to prevent disturbance of school discipline. Then a tie vote in the U.S. Court of Appeals meant that the U.S. District Court's decision continued to stand, and forced the Tinkers and Eckhardts to appeal to the Supreme Court directly.
The case of Tinker vs. Des Moines Independent School District was argued before the court on November 12, 1968. The Court reached a decision on February 24, 1969 and in a 7:2 vote, reversed the decision of the U.S. District Court. Justice Fortas wrote the opinion of the majority, stating that the wearing of the armbands in such circumstances was independent from any sort o disruptive conduct by those participating in it. It was a symbolic act expressing certain views that is classified as “pure speech”, in that it was not a disruptive or aggressive action, but a silent expression of opinion, which is clearly protected under the First Amendment. “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” They rejected the District Court’s belief that the action of the school authorities was reasonable because it was based upon their fear of a disturbance as a result of the armbands. The Supreme Court instead argued that, “our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” The Supreme Court ruled that schools do not have absolute authority over their students, who are entitled to their Constitutional right to freedom of expression of their views, and argued that the principals simply wanted to avoid controversy. Their actions deprived the students of their rights under the First Amendment, as well as of the crucial exchanging of ideas that challenges students to think for themselves. Since the students simply wanted to express their opinions and did not interrupt school activities or intrude into the lives of other students, the school administrators did not have reason to discipline the students. Mr. Justice Black wrote a dissent arguing that the State’s elected officials charged with running the schools should determine what disciplinary actions are “reasonable”, not the Courts. He does not believe that schools should be a place of open expression because the armbands caused students to be diverted from their classwork. He wrote that public school students are not “sent to the schools at public expense to broadcast political or any other views to educate and inform the public.” He asserted that we send students to school to learn, not to teach. “This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students.” Ultimately though, the majority of the Supreme Court ruled that the students’ wearing of the armbands were protected by the First Amendment, because although school environments imply limitations on freedom of expression, the principals lacked justification for imposing any such limits and had failed to show that the actions of the students would interfere with appropriate school discipline.
Following Tinker vs. Des Moines Independent School District, the next case regarding student speech to reach the Supreme Court was Bethel School District vs. Fraser in 1986. It raised the question: Does the First Amendment prevent a school district from disciplining a high school student for giving an inappropriate speech during a school assembly? On April 26, 1983, respondent Matthew Fraser, a student at Bethel High School in Pierce County, Washington, delivered a speech nominating a fellow student for student elective office at an assembly of more than six hundred students and faculty members. During the speech, Fraser referred to his candidate in terms of graphic and explicit sexual metaphors. A Bethel High School disciplinary rule prohibiting the use of obscene language in the school states that, "conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." The Assistant Principal suspended Fraser for three days and removed his name from the list of candidates for graduation speaker at the school's commencement ceremony. Fraser sought review of this disciplinary action through the School District's grievance procedures. The hearing officer determined that the speech given by the respondent was in violation of the disruptive-conduct rule, and affirmed the discipline. Fraser then brought the complaint to the United States District Court, alleging that his First Amendment right to freedom of speech had been violated. He sought both injunctive relief and monetary damages. The District Court held that the school's sanctions violated respondent's right to freedom of speech under the First Amendment to the United States Constitution, “that the school's disruptive-conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent's name from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction.” The Court of Appeals affirmed the judgment of the District Court, rejecting the School District’s argument that the speech had a disruptive effect on the educational process and claiming that the speech was indistinguishable from the armband protest of Tinker vs. Des Moines Independent School District.
In a 7:2 vote the Supreme Court reversed the ruling of both the District Court and the Court of Appeals. Justice Warren Burger stated in the majority opinion that the Court upholds “the students' right to engage in a non-disruptive, passive expression of a political viewpoint in Tinker”; however, this case, unlike Tinker, involves speech that affects the work of the school and the rights of other students. “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior.” The Court concluded in circumstances such as these, “the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings”, because schools are held responsible for educating the youth as well as teaching to some extent the shared values of a civilized society. The Court also rejected the respondent’s claim that his suspension violated due process because he had no way of knowing that the delivery of the speech would result in disciplinary action, by stating that the school’s disciplinary rule prohibiting "obscene" language and the teachers’ objections to the speech before her gave it were adequate warning to Fraser that his speech would result in disciplinary actions. Justice Stevens wrote a dissent in which he stated that he believed that the school has a right to regulate the content of student speech, and that Fraser did not have the right to deliver his speech, because the school has the right to implement rules of conduct in an educational institution, but that Fraser should not be disciplined for speaking frankly in a school assembly if he had no reason to anticipate the consequences. Burger concluded in the majority opinion that it is not in violation of the First Amendment for schools to prohibit inappropriate speech to protect "fundamental values of public school education."
The Supreme Court’s decision in Bethel School District vs. Fraser was used as a guideline for their decision in the 1988 case of the Hazelwood School District vs. Kuhlmeier. The petitioners were the Hazelwood School District in St. Louis County, Missouri, various school officials, the principal of Hazelwood East High School, and Howard Emerson, a teacher in the school district. The respondents were three former Hazelwood East students, one of which was Cathy Kuhlmeier, who were staff members of Spectrum, the school newspaper. They contended that school officials violated their First Amendment rights by deleting two pages of articles from the May 13, 1983, issue of the Spectrum. Upon proofing the pages of an upcoming issue, Principle Reynolds objected to two of the articles that were scheduled to be printed in the next edition: one described the experiences of three students with pregnancy and the other discussed the impact of divorce on students. The Principle worried that although the students’ names had been changed, that their identities could be revealed by the article, as well as that the material was inappropriate for the younger students to be exposed to. Also, he thought that the parents of the student named in the divorce article should consent to the article’s publication, which contained negative comments by the student about his/her father. The principle and his superiors decided to omit the articles. The respondents commenced this action in the United States District Court seeking a declaration that their First Amendment rights had been violated, injunctive relief, and monetary damages. The District Court ruled that no First Amendment violation had occurred. The Court of Appeals reversed, arguing that Spectrum was not only "a part of the school adopted curriculum," but also a public forum, because the newspaper was "intended to be and operated as a conduit for student viewpoint." The Court of Appeals found "no evidence in the record that the principal could have reasonably forecast that the censored articles or any materials in the censored articles would have materially disrupted classwork or given rise to substantial disorder in the school." The court held that school officials had violated respondents' First Amendment rights by deleting the two pages of the newspaper. The court cited the statement in Tinker that students in the public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and that they cannot be punished merely for expressing their personal views on the school premises unless school authorities have reason to believe it will "substantially interfere with the work of the school or impinge upon the rights of other students."
Similar to its ruling in Bethel School District vs. Fraser, the Supreme Court stated in its January 13, 1988 decision of Hazelwood School District vs. Kuhlmeier that a school does not need to tolerate student speech that is inconsistent with its "basic educational mission," even though the government could not censor such speech outside the school. Such regulation of student speech is only an infringement of freedom of speech if the newspaper can be deemed a public forum, meaning that school authorities have "by policy or by practice" opened the facility "for indiscriminate use by the general public," or by some segment of the public. If the facilities have instead been reserved for other intended purposes then it is not a public forum, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The Board Policy stated that "school sponsored student publications will not restrict free expression or diverse viewpoints within the rules of responsible journalism," and also stated that such publications were "developed within the adopted curriculum and its educational implications;" therefore, school officials retained ultimate control over what constituted "responsible journalism" in a school-sponsored newspaper. Instead, they "reserved the forum for its intended purpose," as a supervised learning experience for journalism students. The Supreme Court argued that the school officials were entitled to regulate the contents of Spectrum. Justice White explained why the decision of Tinker could not be applied: “The question whether the First Amendment requires a school to tolerate particular student speech -- the question that we addressed in Tinker -- is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” A school is permitted as publisher of a school newspaper to "disassociate itself" from speech that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences”. The Supreme Court also asserted that schools have the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the values of a civilized society, or to associate the school with any position on topics of political controversy. A school has the right to refuse to lend its name and resources for the careless use of student expression. The Supreme Court concluded in a 5:2 vote that the Principal's decision to delete the two pages of Spectrum was reasonable under the circumstances and did not violate the students’ First Amendment rights.
On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. The torchbearers went down a street in front of Juneau-Douglas High School while school was in session. Petitioner Deborah Morse, the school principal, decided to allow the staff and students to participate in the Torch Relay. Students were allowed to leave class to observe the relay from either side of the street, while teachers and administrative officials watched over the students. At this school-supervised event, the principle saw some of her students, including respondent Joseph Frederick display a large banner that read: "BONG HITS 4 JESUS”. Because the message promoted illegal drug use, prohibited by school policy, the principle directed the students to take down the banner. All but Frederick complied. Morse confiscated the banner and suspended him for 10 days on the grounds that Juneau School Board Policy “prohibits any assembly or public expression that ... advocates the use of substances that are illegal to minors...” and subjects "pupils who participate in approved social events and class trips" to the same student conduct rules that apply during the regular school program. Relying on the decision in Fraser, the superintendent concluded that the Principal's actions were permissible because Frederick's banner was "speech or action that intrudes upon the work of the schools." The Juneau School District Board of Education upheld the suspension because schools have the right to protect those entrusted in their care from the dangers of drug abuse. The District Court found no constitutional violation and ruled in favor of Morse. The U.S. Court of Appeals reversed. They cited Tinker v. Des Moines Independent Community School District, which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Court of Appeals ruled, the punishment was unconstitutional. When the case of Frederick vs. Morse reached the Supreme Court they reversed the decision of the Court of Appeals on March 19, 2007 with a 5:4 vote, and in Chief Justice John Roberts' majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The Court ruled that schools have the right to protect the students they are responsible for from speech that encourages illegal drug use.
Through the ruling of Tinker in 1969, the Supreme Court established that a student’s right to freedom of speech cannot be limited by an educational institution unless that speech is harmful to the rights or well-being of other students. The decision of Tinker advocates that students be encouraged by schools to express their opinions, but in a way that strays away from the use of violence or distractions to other students’ education. The later decisions of the Supreme Court affirm the constitutionality in the fact that the general public is not subject to the same limitations as students are with the right to freedom of speech. Overall, the decisions of the Supreme Court regarding student speech uphold that students are guaranteed the right to freedom of speech under the First Amendment of the Constitution, and that this right is to be protected unless the student’s actions undermine the values of public school education.
*all quotations taken from http://www.law.umkc.edu/faculty/projects/ftrials/firstamendment/
In December 1965, a group of adults and students in Des Moines, Iowa decided to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season. The principals of the Des Moines schools met and decided to implement a policy in which any student wearing an armband would be asked to remove it, and if they refused they would be suspended until they would return without the armband. Petitioners John Tinker, a 15 year-old, Mary Tinker, a 13 year-old, and 16 year-old Christopher Eckhardt wore their armbands, were suspended, and did not return to school until after New Years. The petitioners and their parents filed a complaint in the United States District Court, asking for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from disciplining the petitioners, and seeking nominal damages. The District Court dismissed the complaint, upholding the constitutionality of the school authorities' action on the grounds that it was reasonable in order to prevent disturbance of school discipline. Then a tie vote in the U.S. Court of Appeals meant that the U.S. District Court's decision continued to stand, and forced the Tinkers and Eckhardts to appeal to the Supreme Court directly.
The case of Tinker vs. Des Moines Independent School District was argued before the court on November 12, 1968. The Court reached a decision on February 24, 1969 and in a 7:2 vote, reversed the decision of the U.S. District Court. Justice Fortas wrote the opinion of the majority, stating that the wearing of the armbands in such circumstances was independent from any sort o disruptive conduct by those participating in it. It was a symbolic act expressing certain views that is classified as “pure speech”, in that it was not a disruptive or aggressive action, but a silent expression of opinion, which is clearly protected under the First Amendment. “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” They rejected the District Court’s belief that the action of the school authorities was reasonable because it was based upon their fear of a disturbance as a result of the armbands. The Supreme Court instead argued that, “our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” The Supreme Court ruled that schools do not have absolute authority over their students, who are entitled to their Constitutional right to freedom of expression of their views, and argued that the principals simply wanted to avoid controversy. Their actions deprived the students of their rights under the First Amendment, as well as of the crucial exchanging of ideas that challenges students to think for themselves. Since the students simply wanted to express their opinions and did not interrupt school activities or intrude into the lives of other students, the school administrators did not have reason to discipline the students. Mr. Justice Black wrote a dissent arguing that the State’s elected officials charged with running the schools should determine what disciplinary actions are “reasonable”, not the Courts. He does not believe that schools should be a place of open expression because the armbands caused students to be diverted from their classwork. He wrote that public school students are not “sent to the schools at public expense to broadcast political or any other views to educate and inform the public.” He asserted that we send students to school to learn, not to teach. “This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students.” Ultimately though, the majority of the Supreme Court ruled that the students’ wearing of the armbands were protected by the First Amendment, because although school environments imply limitations on freedom of expression, the principals lacked justification for imposing any such limits and had failed to show that the actions of the students would interfere with appropriate school discipline.
Following Tinker vs. Des Moines Independent School District, the next case regarding student speech to reach the Supreme Court was Bethel School District vs. Fraser in 1986. It raised the question: Does the First Amendment prevent a school district from disciplining a high school student for giving an inappropriate speech during a school assembly? On April 26, 1983, respondent Matthew Fraser, a student at Bethel High School in Pierce County, Washington, delivered a speech nominating a fellow student for student elective office at an assembly of more than six hundred students and faculty members. During the speech, Fraser referred to his candidate in terms of graphic and explicit sexual metaphors. A Bethel High School disciplinary rule prohibiting the use of obscene language in the school states that, "conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." The Assistant Principal suspended Fraser for three days and removed his name from the list of candidates for graduation speaker at the school's commencement ceremony. Fraser sought review of this disciplinary action through the School District's grievance procedures. The hearing officer determined that the speech given by the respondent was in violation of the disruptive-conduct rule, and affirmed the discipline. Fraser then brought the complaint to the United States District Court, alleging that his First Amendment right to freedom of speech had been violated. He sought both injunctive relief and monetary damages. The District Court held that the school's sanctions violated respondent's right to freedom of speech under the First Amendment to the United States Constitution, “that the school's disruptive-conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent's name from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction.” The Court of Appeals affirmed the judgment of the District Court, rejecting the School District’s argument that the speech had a disruptive effect on the educational process and claiming that the speech was indistinguishable from the armband protest of Tinker vs. Des Moines Independent School District.
In a 7:2 vote the Supreme Court reversed the ruling of both the District Court and the Court of Appeals. Justice Warren Burger stated in the majority opinion that the Court upholds “the students' right to engage in a non-disruptive, passive expression of a political viewpoint in Tinker”; however, this case, unlike Tinker, involves speech that affects the work of the school and the rights of other students. “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior.” The Court concluded in circumstances such as these, “the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings”, because schools are held responsible for educating the youth as well as teaching to some extent the shared values of a civilized society. The Court also rejected the respondent’s claim that his suspension violated due process because he had no way of knowing that the delivery of the speech would result in disciplinary action, by stating that the school’s disciplinary rule prohibiting "obscene" language and the teachers’ objections to the speech before her gave it were adequate warning to Fraser that his speech would result in disciplinary actions. Justice Stevens wrote a dissent in which he stated that he believed that the school has a right to regulate the content of student speech, and that Fraser did not have the right to deliver his speech, because the school has the right to implement rules of conduct in an educational institution, but that Fraser should not be disciplined for speaking frankly in a school assembly if he had no reason to anticipate the consequences. Burger concluded in the majority opinion that it is not in violation of the First Amendment for schools to prohibit inappropriate speech to protect "fundamental values of public school education."
The Supreme Court’s decision in Bethel School District vs. Fraser was used as a guideline for their decision in the 1988 case of the Hazelwood School District vs. Kuhlmeier. The petitioners were the Hazelwood School District in St. Louis County, Missouri, various school officials, the principal of Hazelwood East High School, and Howard Emerson, a teacher in the school district. The respondents were three former Hazelwood East students, one of which was Cathy Kuhlmeier, who were staff members of Spectrum, the school newspaper. They contended that school officials violated their First Amendment rights by deleting two pages of articles from the May 13, 1983, issue of the Spectrum. Upon proofing the pages of an upcoming issue, Principle Reynolds objected to two of the articles that were scheduled to be printed in the next edition: one described the experiences of three students with pregnancy and the other discussed the impact of divorce on students. The Principle worried that although the students’ names had been changed, that their identities could be revealed by the article, as well as that the material was inappropriate for the younger students to be exposed to. Also, he thought that the parents of the student named in the divorce article should consent to the article’s publication, which contained negative comments by the student about his/her father. The principle and his superiors decided to omit the articles. The respondents commenced this action in the United States District Court seeking a declaration that their First Amendment rights had been violated, injunctive relief, and monetary damages. The District Court ruled that no First Amendment violation had occurred. The Court of Appeals reversed, arguing that Spectrum was not only "a part of the school adopted curriculum," but also a public forum, because the newspaper was "intended to be and operated as a conduit for student viewpoint." The Court of Appeals found "no evidence in the record that the principal could have reasonably forecast that the censored articles or any materials in the censored articles would have materially disrupted classwork or given rise to substantial disorder in the school." The court held that school officials had violated respondents' First Amendment rights by deleting the two pages of the newspaper. The court cited the statement in Tinker that students in the public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and that they cannot be punished merely for expressing their personal views on the school premises unless school authorities have reason to believe it will "substantially interfere with the work of the school or impinge upon the rights of other students."
Similar to its ruling in Bethel School District vs. Fraser, the Supreme Court stated in its January 13, 1988 decision of Hazelwood School District vs. Kuhlmeier that a school does not need to tolerate student speech that is inconsistent with its "basic educational mission," even though the government could not censor such speech outside the school. Such regulation of student speech is only an infringement of freedom of speech if the newspaper can be deemed a public forum, meaning that school authorities have "by policy or by practice" opened the facility "for indiscriminate use by the general public," or by some segment of the public. If the facilities have instead been reserved for other intended purposes then it is not a public forum, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The Board Policy stated that "school sponsored student publications will not restrict free expression or diverse viewpoints within the rules of responsible journalism," and also stated that such publications were "developed within the adopted curriculum and its educational implications;" therefore, school officials retained ultimate control over what constituted "responsible journalism" in a school-sponsored newspaper. Instead, they "reserved the forum for its intended purpose," as a supervised learning experience for journalism students. The Supreme Court argued that the school officials were entitled to regulate the contents of Spectrum. Justice White explained why the decision of Tinker could not be applied: “The question whether the First Amendment requires a school to tolerate particular student speech -- the question that we addressed in Tinker -- is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” A school is permitted as publisher of a school newspaper to "disassociate itself" from speech that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences”. The Supreme Court also asserted that schools have the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the values of a civilized society, or to associate the school with any position on topics of political controversy. A school has the right to refuse to lend its name and resources for the careless use of student expression. The Supreme Court concluded in a 5:2 vote that the Principal's decision to delete the two pages of Spectrum was reasonable under the circumstances and did not violate the students’ First Amendment rights.
On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. The torchbearers went down a street in front of Juneau-Douglas High School while school was in session. Petitioner Deborah Morse, the school principal, decided to allow the staff and students to participate in the Torch Relay. Students were allowed to leave class to observe the relay from either side of the street, while teachers and administrative officials watched over the students. At this school-supervised event, the principle saw some of her students, including respondent Joseph Frederick display a large banner that read: "BONG HITS 4 JESUS”. Because the message promoted illegal drug use, prohibited by school policy, the principle directed the students to take down the banner. All but Frederick complied. Morse confiscated the banner and suspended him for 10 days on the grounds that Juneau School Board Policy “prohibits any assembly or public expression that ... advocates the use of substances that are illegal to minors...” and subjects "pupils who participate in approved social events and class trips" to the same student conduct rules that apply during the regular school program. Relying on the decision in Fraser, the superintendent concluded that the Principal's actions were permissible because Frederick's banner was "speech or action that intrudes upon the work of the schools." The Juneau School District Board of Education upheld the suspension because schools have the right to protect those entrusted in their care from the dangers of drug abuse. The District Court found no constitutional violation and ruled in favor of Morse. The U.S. Court of Appeals reversed. They cited Tinker v. Des Moines Independent Community School District, which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Court of Appeals ruled, the punishment was unconstitutional. When the case of Frederick vs. Morse reached the Supreme Court they reversed the decision of the Court of Appeals on March 19, 2007 with a 5:4 vote, and in Chief Justice John Roberts' majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The Court ruled that schools have the right to protect the students they are responsible for from speech that encourages illegal drug use.
Through the ruling of Tinker in 1969, the Supreme Court established that a student’s right to freedom of speech cannot be limited by an educational institution unless that speech is harmful to the rights or well-being of other students. The decision of Tinker advocates that students be encouraged by schools to express their opinions, but in a way that strays away from the use of violence or distractions to other students’ education. The later decisions of the Supreme Court affirm the constitutionality in the fact that the general public is not subject to the same limitations as students are with the right to freedom of speech. Overall, the decisions of the Supreme Court regarding student speech uphold that students are guaranteed the right to freedom of speech under the First Amendment of the Constitution, and that this right is to be protected unless the student’s actions undermine the values of public school education.
*all quotations taken from http://www.law.umkc.edu/faculty/projects/ftrials/firstamendment/
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