Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or 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.
1. Is the activity speech?
For symbolic or expressive conduct the test is
“whether an intent to convey a particularized
message was present and whether the
likelihood was great that the message would
be understood by those who viewed it.” Texas
v. Johnson, 491 U.S. 397, 404 (1989).
2. Is the policy vague or overbroad?
It is vague “when men of common
intelligence must necessarily guess at its
meaning . . ..” See Doe v. Univ. of Mich.,
721 F. Supp. 852, 866-67 (E.D. Mich.
1989).
It is overbroad “if it sweeps within its ambit
a substantial amount of protected speech
along with that which it can legitimately
regulate . . ..” Id. at 864.
3. Is the regulation content-based?
If yes, it is presumed unconstitutional unless
it falls within one of the recognized
exceptions.
4. Does the speech fit within one of the
exceptions to the general prohibition against
content-based restrictions?
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Obscenity
Child Pornography
Fighting Words
Incitement to Imminent Lawless Conduct
Defamation
Invasion of Privacy
Harassment
True Threats
Copyright Infringement
Another Recognized Tort or Crime
5. If the regulation is content-based and the
speech does not fit into one of the exceptions,
can the regulation meet the strict scrutiny test?
A content-based regulation “must be narrowly
tailored to promote a compelling Government
interest, and if a less restrictive alternative
would serve the Government’s purpose, the
legislature must use that alternative.” U.S. v.
Playboy Entertainment Group, Inc., 529 U.S.
803, 804 (2000).

Should it be unconstitutional for schools to
restrict student speech that could not be
restricted outside the school?
Facts: Students decided to wear black
armbands to protest the Vietnam War.
After learning of the plan, the district
adopted a policy that prohibited the
wearing of armbands. Students who
wore armbands were asked to remove
them. Five students refused and were
suspended.
Issue: Did the school’s policy violate the
students’ constitutional right to freedom of
expression?
1. Is the wearing of an armband speech?
2. Is the policy vague or overbroad?
3. Is the policy content-based?
4. Is there an exception that would permit
content-based restriction (obscenity,
defamation, etc.)?
5. Can the regulation survive strict scrutiny?
Narrowly tailored
Compelling government interest
No less restrictive alternative
6. Does the speech involve K-12 students in a
public school setting?
Rule: School can limit speech only if school can
reasonably forecast material and substantial
disruption with the requirements of appropriate
discipline in the operation of the school.
Speech that “materially disrupts classwork or
involves substantial disorder or invasion of the
rights of others is, of course, not immunized by
the constitutional guarantee of freedom of
speech.”
The school’s undifferentiated fear or apprehension
of disturbance is not sufficient.
Reasoning:
Although students do not “shed their
constitutional rights of freedom of speech or
expression at the schoolhouse gate,”
students’ rights must be considered in light
of special circumstance of the school
environment.
Balancing Test: Student’s interests v. school’s
interest.
Holding: Passive political speech of students in
this case did not materially and substantially
interfere with the requirements of appropriate
discipline in the operation of the school.
Facts: Fraser delivered a nomination speech for
a classmate at a mandatory school assembly.
His speech involved an “elaborate, graphic,
and explicit sexual metaphor.” Fraser was
suspended for three days for violating the
school policy prohibiting obscene language.
He was also removed from the list of
candidates for graduation speaker.
Would the Tinker standard (material and
substantial disruption) permit the school to
discipline Fraser?
Rule: School can restrict speech
that is vulgar, lewd, obscene, or
plainly offensive.
Reasoning:
Role of Public Education:
 “[T]he inculcation of fundamental values
necessary for the maintenance of a
democratic political system,” including the
habits and manners of civility”
 Teaching the boundaries of socially
appropriate behavior
Factual considerations:
Students are captive audience.
Schools serve in loco parentis.
Speech caused actual disruption (class time
response).
Schools should protect students from
inappropriate and embarrassing material.


The Court finds that regulation of the
offensive speech was unrelated to political
viewpoint (distinguished from Tinker).
The Court reasons, “Nothing in the
Constitution prohibits the states from
insisting that certain modes of expression are
inappropriate and subject to sanctions.”
Facts: Students complained that school
officials violated their First
Amendment rights when they barred
the publication of two articles in the
school newspaper. The articles
described students’ experiences with
pregnancy and the impact of divorce.
Does the policy meet one of the school
standards?
Tinker – School can regulate speech that
causes a material and substantial disruption
or invades the rights of others
Bethel – School can restrict speech that is
vulgar, lewd, obscene, or plainly offensive.
The Court distinguishes Tinker and Fraser as
cases that ask whether the First Amendment
requires schools to tolerate particular student
speech.
In contrast, Hazelwood raises the question of
whether the First Amendment requires a school
to affirmatively promote particular student
speech.
Hazelwood creates a new category often
referred to as school-sponsored speech.

Holding: Educators do not offend the First
Amendment by exercising editorial control
over the style and content of student speech
in school-sponsored expressive activities so
long as their actions are reasonably related to
legitimate pedagogical concerns.
School has the right to disassociate
itself from speech that students,
parents, and members of the public
might reasonably perceive to bear
the imprimatur of the school if the
speech is ungrammatical, poorly
written, inadequately researched,
biased or prejudiced, vulgar or
profane, or unsuitable for immature
audiences.
Rule: A school can regulate school-sponsored
student speech as long as the regulation is
reasonably related to legitimate pedagogical
concerns.
Facts: Students were permitted to watch the
Olympic Torch Relay as it passed along the
street by the school. Teachers monitored
students’ actions. A senior who was late to
school joined classmates on the sidewalk and
unfurled a banner that said “BONG HiTS 4
JESUS.” When he refused the principal’s order
to take it down, he was suspended.
Two Issues:
1. Is this a school speech case?
2. If it is, can a principal restrict student
speech at a school event when that speech is
reasonably viewed as promoting illegal drug
use?
Majority – Roberts, Scalia, Kennedy, Thomas,
Alito
Concurring – Thomas
Concurring – Alito and Kennedy
Concurring in judgment in part, dissenting in
part – Breyer
Dissent – Stevens, Souter, Ginsburg
1. Is this a school-speech case?
Facts suggesting it is not:
Frederick was standing on a
public sidewalk.
He was not yet in attendance that
day.
He was 18 and not required to be
in school.
Facts suggesting that it is:
The event took place during
school hours and was sanctioned
by the principal.
Teachers were supervising.
Band and cheerleaders performed.
Frederick stood among other
students.
 Court
decides that this is a school
speech case.
 Court finds that Frederick cannot
“stand in the midst of his fellow
students, during school hours, at
a school-sanctioned activity and
claim that he is not at school.”
2. Can a principal restrict student speech at a
school event when that speech is reasonably
viewed as promoting illegal drug use?
Is it reasonable for principal to interpret the
banner as promoting illegal drug use?
Court says message could mean either of two
things:
“[Take] bong hits”
or
“Bong hits [are a good thing]”
Holding: “The ‘special characteristics of the
school environment’. . . and the
government interest in stopping student
drug use . . . allow schools to restrict
student expression that they reasonably
regard as promoting illegal drug use.”
School can limit speech that materially
disrupts classwork or involves substantial
disorder or invades the rights of others.
School can restrict speech that is vulgar, lewd,
obscene, or plainly offensive.
School can regulate school-sponsored
student speech as long as the regulation is
reasonably related to legitimate pedagogical
concerns.
School can restrict student expression that it
reasonably regards as promoting illegal drug
use.
A public school district may require students to
wear a school uniform or restrict student dress
to a particular style in accordance with the law.
The school district may determine the style and
color of the school uniform.
No employee of or volunteer in or school board
member of or school district administrator of a
public school or charter school shall direct a
student to remove an emblem, insignia, or
garment, including a religious emblem,
insignia, or garment, as long as such emblem,
insignia, or garment is worn in a manner that
does not promote disruptive behavior.
Facts: After a number of racially charged
incidents, the school banned the wearing of
clothing depicting the confederate flag symbol.
Several students were sent home for refusing
to remove items of clothing that violated the
school policy. Those students sued the school
claiming it had violated their First Amendment
rights.
The Eighth Circuit applied the Tinker standard
and found that the school policy met that
standard.
“The record in this case contains evidence of
likely racially-motivated violence, racial
tension, and other altercations directly related
to adverse race relations in the community and
the school. Tinker is satisfied. Because the
school could reasonably forecast a substantial
disruption, the administration did not violate
the First Amendment by banning the flag.”
“Racially offensive speech cannot be restricted for that
reason alone; but, when that speech occurs in an
educational and social context that enables school
officials to reasonably suspect material and substantial
discipline disruption, some limitation of normal free
expression is constitutionally permissible. Based on the
substantial race-related events occurring both at the
school and in the community, some of which involved
the Confederate flag, we hold that the District’s ban
was constitutionally permissible. Farmington school
officials, considering the instant facts and
circumstances, could reasonably “forecast” a
“substantial disruption” resulting from any display of
the Confederate flag.”
Facts: Twin brothers created a website
(NorthPress) and blog intended to discuss,
satirize, and vent about events at Lee’s Summit
North.
The posts included offensive and racist
comments and also sexually explicit and
degrading comments about named female
classmates.
The brothers told only 5 or 6 classmates, but
the student body soon learned about blog.
Procedure
The brothers were suspended for 10 days.
Following a hearing, an appeal, and a
second hearing, they were suspended for
180 days.
They were permitted to enroll in Summit
Ridge Academy during their suspensions.
The brothers filed suit for a preliminary
injunction to lift the suspension.
Test for Preliminary Injunction:
“(1) the threat of irreparable harm to the
movant;
(2) the state of balance between this harm
and the injury that granting the injunction
will inflict on other parties litigant;
*(3) the probability that movant will
succeed on the merits; and
(4) the public interest.”
Issue: Are the Wilsons likely to prevail on their
claim that the school violated their
constitutional right to free speech?
Sub-issues:
1. Can off-campus speech be the subject of
school discipline?
Yes, if it is reasonably foreseeable that the
speech will reach the school community and
cause a substantial disruption.
2. If off-campus speech can be the subject of
discipline, which First Amendment standard
applies?
The Eighth Circuit decides thatTinker applies.
That view is supported by Second, Third, and
Fourth Circuit decisions.
Under Tinker, why would the Wilsons be
unlikely to succeed on the merits?
Eighth Circuit also notes the distress that
the Wilsons’ return could have caused the
targeted female student.
“We hold that the Wilsons are unlikely to
succeed on the merits under the relevant
caselaw. We also conclude the District
Court's findings do not establish sufficient
irreparable harm to the Wilsons to justify a
preliminary injunction.”