Teachers, Students &
the
First Amendment
The First Amendment (1791)
Three “R’s” of the First Amendment
• Rights – Individual (Each of us is born with
certain inalienable rights)
• Responsibilities – Mutual (Each of us must
accept the responsibility to guard the
rights of others – especially those with
whom we most deeply disagree)
• Respect – Universal (Each of us must
commit to debate out differences with
respect).
How Important is Free Press?
• “If it were left to me to decide whether we
should have a government without a free
press or a free press without government,
I would choose the latter.” – T. Jefferson
Do students in public schools have
First Amendment rights?
 Yes
 No
 It depends
Yes…But Not Until Recently
• 1791: “Congress shall make no law…”
• 1908: Students suspended for poem
critical of their teacher – “Such power is
essential to the preservation of order,
decency, decorum, and good government
in the public schools.”
• 1925: Gitlow vs. New York – First
Amendment applies to states via the
Fourteenth Amendment
The Fourteenth Amendment (1868)
• Section 1 – No State shall
make or enforce any law
which shall abridge the
privledges and immunities
or citizens of the United
States; nor shall any state
deprive any person of life,
liberty, or property, without
due process of law; nor
deny to any person within
its jurisdiction the equal
protection of the laws.
The Tinker Standard
• Tinker vs. Des Moines School District
(1969)
• Black armbands in 1965
• Student speech cannot be
censored as long as it does
not “materially disrupt class
work or involve substantial
disorder or invasion of the
rights of others.”
The Fraser Standard
• Bethel School District vs. Fraser (1986)
• Inappropriate speech for class president
• Because school officials have an “interest
in teaching students the boundaries of
socially appropriate behavior,” they can
censor student speech that is
vulgar or indecent, even if it
does not cause a “material
or substantial disruption.”
The Hazelwood Standard
• Hazelwood School District vs. Kuhlmeier
(1988)
• Censor stories in student newspaper
about teen pregnancy and divorce
• Censorship of schoolsponsored student expression
is permissible when school
officials can show that it is
“reasonably related to
legitimate
pedagogical concerns.”
The Frederick Standard?
Morse vs. Frederick (June 25, 2007)
• January 2002, Olympic
torch travels through
town
• Principal Morse
cancels school
• Senior Frederick
unveils banner on the
sidewalk across street
which reads “Bong Hits
4 Jesus”
• Suspended for 10 days
How Would You Decide This
Case?
• What is your reasoning for Frederick?
• What is your reasoning for Morse?
• Which previous cases do you use for your
argument?
Your Rights Outside of School
• “There is no legal justification for censoring a student’s expression in the
privacy of his home.”
• For instance, a federal district court in Maine ruled in Smith v. Klein
(1986) that school officials violated the constitutional rights of a student
when they suspended him for gesturing at a teacher with his middle finger
raised at an off-campus restaurant. The judge determined that the
student’s disrespectful act was “too attenuated” with school functions to
be punishable by school officials.
• Similarly, the 2nd U.S. Circuit Court of Appeals rejected school officials’
attempts to shut down an underground student newspaper sold off
campus in Thomas v. Bd. of Ed., Granville Cent. Sch. District (1979),
writing: “our willingness to defer to the schoolmaster’s expertise in
administering school discipline, rests, in large measure, upon the
supposition that the arm of authority does not reach beyond the
schoolhouse gate.”
• Likewise, a federal district court in Washington ruled in Emmett v. Kent
School District No. 415 (2000) that student Internet speech created off
campus is “entirely outside of the school’s supervision or control.”
Three Types of Student Web Sites
• Sites that are offensive, obnoxious and insulting
• Sites that are offensive, obnoxious and insulting,
and also contain some sort of veiled threat of
violence or of destruction of property
• Sites that contain outright blatant threat (Post
Columbine)
• Facebook issues at Eden Prairie and and
Woodbury High Schools. What are your
opinions?
Libel and Slander
• Libel and slander are legal terms for false statements of fact about a
person that are printed, broadcast, spoken or otherwise
communicated to others. Libel generally refers to visual or written
statements, while slander refers to verbal statements. The term
defamation covers both libel and slander. For a statement to be
defamatory, it must be more than insulting or offensive. It must
actually harm the reputation of another person.
• New York Times Co. v. Sullivan (1964)
• 1960 New York Times ran a full page add about Martin Luther King
and an Alabama tax evasion charge
• Libel about the Alabama police force
• Commissioner Sullivan requested a retraction and eventually sued,
winning $500,000
Elements of Libel
•
•
•
•
•
A defamatory statement…
Published to at least one other person (other than plantiff)…
“Of and concerning” the plaintiff (identify specifically with plaintiff)
That is a false statement of fact (opinions are not libel)…
And made with fault. The level of fault depends on status of plaintiff
– Public Figures: celebrities, government, etc. are required to prove
actual malice, meaning the defendant know statements were false
– Private Individuals: must only show that the defendant was negligent,
(failing to act with due care).
• Libel cases are civil law and may be heard by juries. Monetary
damages can be received as compensation for suffering.
Ethics
• Should we believe everything we see on
the news?
• How can the news be tainted or falsified?
• “Wag the Dog” and course conclusion