First Amendment

Free Expression
Rights of
By David L. Hudson Jr.
Student free-speech examples
Can a student wear a t-shirt with a
religious, anti-gay message?
Can a student criticize his teacher and
principal online on his own computer
without repercussions?
Can a student write a news editorial in a
school-sponsored student newspaper
about underage drinking and drug use?
Text of First Amendment
“Congress shall make no law …
abridging the freedom of speech …”
But, “no law” really doesn’t mean no law.
 Unprotected categories (obscenity,
fighting words, etc.)
 Clear and present danger to incitement
 Particular places (military, public
employment and schools)
West Virginia v. Barnette (1943)
“If there is any fixed
star in our
constellation it is that
no official, high or
petty, can prescribe
what shall be
orthodox in politics,
nationalism, religion,
or other matters of
Tinker v. Des Moines Independent
Comm. Sch. Dist. (1969)
Several students wear black armbands to
protest U.S. involvement in Vietnam War.
School officials learn of impending protest
and pass no-armband rule.
Students still wear armbands to school
and are suspended.
The Tinker standard
School officials can
censor student
expression only if it
“materially disrupts
classwork or
involves substantial
disorder or
invasion of the
rights of others.”
What is a “substantial
 Must
be a “reasonable forecast” of
 “undifferentiated fear or
apprehension of disturbance is not
enough to overcome the right to
freedom of expression.”
Tinker standard
Can school officials reasonably forecast that
student expression will create a substantial
disruption or material interference with school
activities or invade the rights of others?
Has student expression (i.e. – T-shirt) led to
fights at school?
Has the student expression led to the shutting
down of the school computer lab or the
cancelling of classes?
What about language in Tinker of
“Invades the Rights of Others”
Never really explained by the court.
The 9th Circuit ruled that school officials could
prohibit a student from wearing t-shirts with
religious-based, anti-gay messages because it
would invade the rights of gay and lesbian
students. The U.S. Supreme Court has never
told us when student speech invades the rights
of others --- not a clear standard.
Terrorist T-shirt
NRA Gun Shirt
Bethel School District v. Fraser, 478
U.S. 675 (1986)
"I know a man who is firm -- he's firm in his pants, he's
firm in his shirt, his character is firm -- but most . . . of all,
his belief in you, the students of Bethel, is firm.
Jeff Kuhlman is a man who takes his point and pounds it
in. If necessary, he'll take an issue and nail it to the wall.
He doesn't attack things in spurts -- he drives hard,
pushing and pushing until finally -- he succeeds.
Jeff is a man who will go to the very end -- even the climax,
for each and every one of you. So vote for Jeff for A. S. B.
vice-president -- he'll never come between you and the best
our high school can be."
Bethel School Dist. No. 403 v.
Fraser (1986)
“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.”
Fraser: Offensive Speech Silenced
The Fraser standard: school officials can
regulate student speech is vulgar, lewd or
plainly offensive.
Fraser: “The undoubted freedom to advocate
unpopular and controversial views in schools
and classrooms must be balanced against
society’s countervailing interest in teaching
students the boundaries of socially appropriate
Drugs Suck T-shirt
Marilyn Manson t-shirt case
Student wears a Marilyn Manson t-shirt to
school. The front of the shirt depicts a
three-faced Jesus. The back of the shirt
depicts the word “BELIEVE” with the
letters “LIE” highlighted.
Student is punished.
Boroff v. Van Wert City Board of
Education, 220 F.3d 465 (6th Cir. 2000).
Majority in Boroff
“the record demonstrates that the School
prohibited Boroff’s Marilyn Manson t-shirts
generally because this particular rock
group promotes disruptive and
demoralizing values which are inconsistent
with and counter-productive to
Hazelwood School District v.
Kuhlmeier, 484 U.S. 260 (1988)
School principal censors two stories in
school newspaper (produced as part of
journalism class). One deals with teen
pregancy; another deals with impact of
divorce upon teens.
Students sue, relying on Tinker
“substantial disruption” standard.
Hazelwood standard
“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
Anti-Hazelwood Laws (state)
Arkansas (1995)
 California (pre-Hazelwood)
 Colorado (1990)
 Iowa (1989)
 Kansas (1992)
 Massachusetts (1988)
 Oregon (2007)
Trilogy for Nearly 20 Years
Hazelwood standard – applies to schoolsponsored speech
Fraser – applies to student speech that is
vulgar and lewd.
Tinker – applies to most other student
Bong Hits 4 Jesus Case
Morse v. Frederick (06-278)
High school student in Alaska skips school
and attends Olympic torch relay that runs
on public street near school. He displays
banner that reads “Bong Hits 4 Jesus.”
School principal tears down banner and
suspends student for 10 days (allegedly
doubling suspension after he mentioned
the First Amendment and Thomas
Bong Hits (cont.)
The Court creates a “promoting drug
speech exception” to the trilogy, writing
that schools can “restrict student
expression that they reasonably regard
as promoting illegal drug use.”
Bong Hits (cont.)
The Court did rule that Fraser “should not
be read to encompass any speech that
could fit under some definition of
‘offensive.’ After all, much political and
religious speech might be perceived
as offensive to some.”
Thus, -- some offensive speech (of
non-sexual nature still protected!)
Violent Student Expression/True
Is the Expression a True Threat?
If a true threat, it is unprotected speech. True
threats are not protected by the First
Even if the expression is not a true threat, can it
be prohibited under the Tinker standard?
Definitions of True Threats
Would a reasonable person believe that an
objective, reasonable recipient of the statement
would interpret the language to constitute a
Would a reasonable recipient interpret the
material as a serious threat of harm?
Factors in Determining
Whether Expression is a
True Threat
The reaction of the recipient and other
Whether the threat was conditional;
Whether the threat was communicated
directly to the recipient;
Whether the maker of the statement had
made similar statements in the past;
Whether the victim had reason to believe that
the maker of the statement had a
propensity to engage in violence.
True Threats
Liberty v. Security
James Lavine and Case of Stolen Poem
 Lavine v. Blaine School District and Doe v.
Pulaski County
Confederate flag
Billy is proud of his Southern heritage. He wears
a Confederate flag jacket to school. He doesn’t
mean to offend other students. However, several
students complain that the jacket is insensitive
and offends them.
The principal orders Billy to remove the jacket or
go home. The principal fears the jacket could
exacerbate racial tensions at the school, which
has had some racial tension. However, school
officials have allowed students to wear clothing
which contained other racially-tinged symbols.
Underground Press
A student in Milwaukee wrote an
anonymous article for the school’s
underground newspaper. The article was
entitled “So You Want To Be A Hacker”
and purportedly explained how to “hack
the school’s gay ass computers.” When
the administration found out who the
author was, the student was expelled for
one year, arguing that the article
“endangered school property.”
Awful Internet
Frank, a public high school student created a webpage
on his home computer that criticized the school principal
and teachers with crude and vulgar language. The
student’s homepage contained a hyperlink to the
school’s webpage.
Several students, upset over the sites content, accessed
Frank’s homepage at school and showed the school’s
computer teacher. The computer teacher then showed
the school principal who was outraged.
The principal suspended the student for 10 days because
of the offensiveness of the speech. The principal did not
speak to any other students before deciding to take
disciplinary action against the student.