The First Amendment: Do you know your speech rights as a student?
Sept. 3, 2008
Your right to free speech is not eliminated when you step into school or attend a school function, but a ruling this summer by the U.S. Supreme Court has placed more limits on it than ever before.
In one of the final decisions of the Court’s 2006-2007 term, the justices considered the controversial Morse v. Frederick case and ruled that principal Deborah Morse was allowed to punish student Joseph Frederick for unfurling a questionable banner, even though it occurred, technically, off the campus of their Juneau, Alaska high school.
The ruling has far-reaching implications for your First Amendment rights as a student. Some experts argue that because the message of Frederick’s banner – “Bong Hits 4 Jesus” – was a cheeky statement that seemingly promoted drug use, rather than political or religious speech, it didn’t deserve protection. Others worry that this case set a precedent for principals who want to punish students for protected political or religious speech off-grounds that they might find objectionable. Still another viewpoint suggests that the ruling could have implications for student speech online.
The beginning: Student speech in Vietnam-era classrooms
Morse v. Frederick is not the first Supreme Court case dealing with students’ right to free speech. The case was reviewed in the context of the groundbreaking Supreme Court case, Tinker v. Des Moines Independent Community School District (1969), in which the court decided that students’ speech in school is protected by the First Amendment as long as it is not disruptive to the educational process.
Arguably one of the most important rulings in defining students’ freedom of speech, the Tinker case began in 1965, during the Vietnam War. A group of students, led by John F. Tinker, Mary Beth Tinker and Christopher Eckhardt, planned on protesting the war by wearing black armbands to school from December 16, 1965 until the New Year. The principals of the Des Moines schools became aware of the plan, and on December 14, they adopted a policy that forbade the wearing of armbands in school and called for suspension of the students until they returned without the armbands.
On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were asked to remove them. They refused and did not return to school until after the planned period for wearing the armbands, after New Year’s Day.
The parents of Mary Beth and John Tinker filed a complaint with a federal judge and brought the Des Moines Independent Community School District to court on the grounds that the school infringed on their students’ First Amendment rights.
The case was argued throughout the federal court system, and in 1967, the case made its way to the Supreme Court.
The Supreme Court ruled that the schools did infringe on the students’ First Amendment rights. The court found that students do have the right to free speech, even in school, but that freedom does not include types of expression that may hinder the learning environment of others. Judge Hugo Black said in his court statement that:
“First, the Court concludes that the wearing of armbands is ‘symbolic speech’ which is ‘akin to ‘pure speech’’ and therefore protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public schools are an appropriate place to exercise ‘symbolic speech’ as long as normal school functions are not ‘unreasonably disrupted’.”
Old and new precedents
The Tinker v. Des Moines ruling defined parameters for school administrators to follow in order to protect students’ First Amendment rights while maintaining the school’s educational environment. However, subsequent cases - Bethel School District No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988) – have redefined the scope of that ruling, allowing certain types of speech to be censored.
The Bethel case involved a 17-year-old Washington student who, in 1983, spoke at a school assembly to nominate his classmate for vice president of student government. His speech, while it did not contain any vulgar or obscene words, was filled with sexual references and puns that– many found offensive, including the administration, which suspended him for three days and barred him from speaking at his graduation.
The student sued, the case worked its way up the legal system and three years later, the U.S. Supreme Court ruled in favor of the school district, outlining a difference between the First Amendment rights of adults and minors: “the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech.”
In the Hazelwood case, a principal in Missouri reviewed an issue of the school newspaper, and pulled two articles, one involving divorce and the other involving student pregnancy that included interviews with three students who had become pregnant. Pseudonyms were used to keep their identities secret, but the principal decided that they didn’t offer enough protection. Further, he felt that the article, which discussed birth control and sexual activity, was inappropriate for younger students.
The Supreme Court ruled that as a school-sponsored publication, a student newspaper is not a public forum for student expression. Therefore, a school’s decision to censor them is permitted if the censoring is “reasonably related to legitimate pedagogical concerns.” In this case, the principal’s concerns were shielding “inappropriate” commentary – even though it was not lewd or graphic, as the comments in Bethel were – from the younger students.
New developments: Speech off school grounds
The controversy behind this year’s ruling was that the action for which Joseph Frederick was punished occurred off of school grounds. It was around the time of the 2002 Olympics, a parade was happening in downtown Juneau as the Olympic torch passed through and classes were dismissed early so students could walk to the event in a group with their teachers. In town, safely away from school, is where Frederick and his friends decided to play their prank and unfurled the banner, which he admitted in court was nothing more than attempt to draw attention to himself and get on TV.
His principal tore down the banner and suspended him for ten days, but Frederick argued that he was out of school and, thus, out of Morse’s jurisdiction. It may be true that he was not on school grounds, but the Supreme Court decided Frederick was at a school function – a gathering not unlike a field trip – and that, under the standards of Tinker, his activity constituted a disruption.
In the majority opinion, Chief Justice John Roberts wrote, “The event in question occurred during normal school hours and was sanctioned by Morse as an approved social event at which the district’s student-conduct rules expressly applied. … Frederick stood among other students across the street from the school and directed his banner toward the school, making it plainly visible to most students. Under these circumstances, Frederick cannot claim he was not at school.”
Implications of the ruling
The Supreme Court’s ruling has implications in terms of student speech, causing speculation and commentary among critics about when student speech can be restricted, where it can be restricted, and what can be done to offer more protection.
In an interview with MTV News online, Witold Walczak of the American Civil Liberties Union of Pennsylvania said that student speech, in general, receives fairly extensive protection if it involves political or religious speech.
“When it comes to serious criticisms and discussions of what's going on in society, you're safe as long as you do it in a non-profane, relatively respectful way,” Walczak said. “You can get those messages out, even if they're critical of what the school is doing. The school would have a tremendous burden to justify either punishing a student or telling them they can't express that message, either on a T-shirt or handing out fliers.”
The problem with Frederick was that few people considered waving a banner reading “Bong Hits 4 Jesus” to be ‘serious criticism or discussion,’ part of the reason his case was not successful. However, Justice John Paul Stevens, who ruled in favor of Frederick, argued in his minority opinion that, while Fredereck’s banner might have contained a nonsense slogan, the decision against it could allow administrators to punish a student for speech that perhaps challenged drug laws in a more direct, serious manner.
“The court's ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high school students, about the wisdom of the war on drugs,” Stevens wrote.
Another consideration is where the speech occurs, and Walczak argues that despite the particulars of this case, student speech off school grounds remains safe. Frederick involved a school-sponsored event giving administrators more latitude to restrict what students did. But at heart, Walczak says, “the lesson for teachers and administrators is, their authority stops at the schoolhouse gate. ... So if a student flips the bird to a principal at a mall, can that principal use his or her authority to punish the student? Our argument would be ‘no.’”
Some wondered whether student speech would be protected in the online realm. Commentator Andy Carvin pointed out in a column on PBS.org that in recent years, schools have attempted to crack down on students who post to blogs, personal websites and social networking pages such as Facebook.com. Carvin argued that the results of this will prove mixed; some schools who attempt to discipline students for activities on personal computers, at home and away from school, may continue being forced to “back down and even pay damages.”
On the other hand, Carvin says that online activities from home can be viewed as “school-sancitioned” for schools that decide to allow social networking sites in the classroom. “Many schools, of course, filter out social networks, deeming them not educational and inappropriate for classroom access,” he wrote. “[But] if a school allows access to certain social networks and a student hypothetically posted drug-related content on his or her personal online profile, the school might argue that using the social network is indeed school-sanctioned and thus open to disciplinary action, even if the content is posted off-campus.”
For advocates of student free speech, hope lies in local and state laws. California, for example, is likely to see little effect from the Frederick ruling since a state statute enacted in 1983 entitles public school students to freedom of speech unless what they say is obscene or libelous or it creates “a clear and present danger” of lawbreaking in the school.
In an Associated Press interview, Peter Scheer, executive director of the California First Amendment Coalition - a media advocacy organization – said, “Students, particularly in the higher grades, ought to enjoy essentially the same freedom of speech that their parents enjoy.”
What do you think?
How does the Supreme Court’s ruling in Morse v. Frederick affect students’ speech rights at school and away from school? How does the Frederick case correspond to and differ from past First Amendment cases involving schools and students? What kind of free speech protections should be granted to students at school-sponsored events? How would the justices have ruled differently if Frederick’s banner had said something different? How do you think this will affect online activities and state and local laws? How would you have decided the case? Join the discussion and let us know!
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