Freedom of Speech
First Amendment
• 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 to
peaceably assemble and to
petition the government for a
redress of grievances.
RAPPS
• Religion
• Assembly
• Press
• Petition
• Speech
• You can express an opinion
without fear of censorship by the
government, even if that opinion
is an unpopular one
• It does not mean you can say
anything you want- wherever you
want- or whenever you want
• Fighting words- words that cause
distress or incite violence, are not
protected
• Obscene expressions are not
protected by the First
Amendment
• If you tell a lie about someone
who then sues you because you
damaged their reputation, you
will not be able to claim that the
First Amendment protects you
• False advertising, hate speech,
revealing state secrets, lying in court
(perjury), heat speech based on race,
religion, or sexual preference,
encouragement of terrorism, noise
pollution, speaking publicly in places
without a permit
• http://www.firstamendmentcenter.org/
• www.channel.com/five-freedoms/
Symbolic Speech
• Conduct that expresses an idea
• Sit-ins, flag waving,
demonstrations, protest buttons,
• Only some conduct is protected as
symbolic speech
• Did the speaker intend to convey
a message and was the message
understood?
Texas v Johnson
• 1984 Republican National
Convention
• Gregory Lee Johnson took part in
a demonstration
• His group was protesting against
nuclear weapons and other things
• Johnson was carrying an
American flag
• When he reached Dallas City Hall,
he poured kerosene on the flag
• Set it on fire
• People chanted “America, the red,
white, and blue, we spit on you”
• No one was hurt, but some people
who were there said they were
very upset
• Johnson was arrested
• Charged with violating Texas law
that said people couldn’t
vandalize a respected object
• Convicted, sentenced to a year in
prison, fined $2000
• Appealed his case
• Texas Court of Criminal Appeals
agreed with him
• Court said freedom of speech
included “symbolic speech”
• State wanted to maintain order
and to preserve the flag as a
symbol of national unity
• State argued its interests were
more important than Johnson’s
symbolic speech rights
• Court did not agree with State
• Court said the government cannot
“carve out a symbol of unity and
prescribe a set of approved
messages to be associated with
that symbol…”
• Supreme Court said that
Johnson’s burning of the flag was
a form of symbolic speech that is
protected by the First
Amendment
• “If there is a bedrock principle
underlying the First Amendment
it is that the government may not
prohibit the expression of an idea
simply because society finds the
idea itself offensive or
disagreeable.”
• Flag Protection Act of 1989 was
passed- the law made it a crime to
knowingly mutilate, deface,
physically defile, burn, or trample
a U.S. flag
• Supreme Court of the United
States declared this law
unconstitutional in the case of
United States v Eichman
• Proper method of destroying or
“retiring” a flag that is worn out
or soiled is to burn it
• Boy Scouts and American Legion
groups perform the ceremonies
Hazelwood v Kuhlmeier (1988)
• May 1983
• Students in Journalism II class at
Hazelwood East High School in
St. Louis, Missouri
• School paper final edition, advisor
submitted paper to principal
• Reynolds (principal) reviewed the
paper
• Two articles that concerned him
• First article addressed the issue of
teen pregnancy, including
comments from pregnant
students at the school
• There were enough details in the
article to make it easy for other
students to determine the
identities of the pregnant teens
• He was concerned about their
privacy
• Second article was about divorce,
and included personal articles
• Principal was concerned about
what the students said about their
families
• In the article, one student whose
parents were divorced made
negative comments about her
father- saying her father was
always out with the guys, that he
didn’t spend enough time with his
family, and that her mother and
father were always fighting
• The principal was troubled by the
fact the father had not been given
a choice to defend himself
• The article mentioned sex and
birth control
• He didn’t feel as if students in 9th
grade should be reading that
• He had wanted the students to
make changes in their articles, but
was worried about missing the
deadline for publication
• Told the advisor to delete the two
pages with the questionable
articles and publish the rest
• Students were upset they had not
been approached about the
problems
• They felt this censorship violated
their First Amendment rights
• Took it to court
• The court did not agree with
them- judges said the school
officials might impose limits on
students’ speech in activities that
are “an integral part of the
school’s educational function”
• Students appealed their case
• Court of Appeals in the Eighth
Circuit reversed the decision of
the lower court- said the students’
First Amendment rights had been
violated
• School newspaper was part of
school curriculum but also a
“public forum”
• The newspaper was “intended to
be and operated as a conduit for
student viewpoint”
• Felt the principal or other officials
could censor it only when
“necessary to avoid material and
substantial interference with
school work or discipline…or the
rights of others.”
U.S. Supreme Court
• “….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.”
Justice White- speaking for the
majority
• This case made is easier for
principals and other school
officials to censor student
expression
• Some states have “antiHazelwood” laws to allow
journalists more protection
• Arkansas, California, Colorado,
Iowa, Kansas, Massachusetts
Tinker v Des Moines
• John and Mary Beth Tinker were
public school students in Des
Moines, Iowa
• December 1965
• Part of a group against American
involvement in the Vietnam War
• Wanted to publicize their
opposition by wearing black
armbands to school
• Principals adopted and informed
students of a new policy
concerning armbands
• Policy stated that any student who
wore an armband to school would
be asked immediately to remove it
• A student who refused to take off
the armband would be suspended
until agreeing to return without
the armband
• Two days later- the Tinker
children and a friend decided to
wear armbands to school
• They were asked to remove themthey did not remove the bands
and were suspended
• The children returned to school
with armbands after Jan 1, 1966the date scheduled for the end of
their protest
• Their fathers filed suit in U.S.
District Court
• Suit asked the court for a small
amount of money for damages
and an injunction to restrain
school officials from enforcing
their armband policy
• District Court recognized
children’s First Amendment right
to free speech, but refused to issue
the injunction- claimed the school
officials’ actions were reasonable
in light of potential disruptions
form the students’ protest
• Tinkers appealed case in U.S.
Court of Appeals- tie vote in the
court allowed the District Court
ruling to stand
• Appealed to the Supreme Court of
the United States
• Do the First Amendment rights of
free speech extend to symbolic
speech by students in public
schools? And, if so, in what
circumstances is that symbolic
speech protected?
• Fourteenth Amendment extends
the rule of the First Amendment(First says “Congress shall make
no law…abridging the freedom of
speech”) Fourteenth extends it to
include state governments- school
systems are a part of the state
government
• First Amendment though doesn’t
identify which kinds of speech are
protected
• It is not clear whether hate speech
against an individual or group is
protected
• Does not specify what types of
expressive actions should be
considered as speech
Internet
• Jessica Logan Bill.doc
• Layshock v Hermitage School
District.doc
• http://www.citmedialaw.org/thre
ats/blue-mountain-schooldistrict-v-js
• Third Circuit sides with students
in online speech fight.doc
O’Brien v Westlake City Schools
Board of Education (1998)
• O’Brien was a junior at the high
school when he created a web site
“raymondsucks.org”
• It criticized his band teacher
• School officials accessed the site
from school, assistant principal
suspended O’Brien for 10 days
• “students shall not physically
assault, vandalize, damage, or
attempt to damage the property of
a school employee or his/her
family or demonstrate physical,
written, or verbal
disrespect/threat.”
• His grades plummeted, failed
band as a result of suspension
• He filed a lawsuit against Board of
Education
• Judge agreed that school officials
do not have the authority to
regulate speech made by students
off campus
• Judge recognized that “the
involvement by the school in
punishing plaintiff for posting an
Internet Web site critical of
defendant…raises the ugly specter
of Big Brother.”
• School expunged suspension,
wrote him a letter of apology, nad
paid Sean $30,000
Beussink v Woodland R-IV School
District (1998)
• Buessink, junior at Woodland
High School- added comments to
his personal home page that
criticized teachers and
administrators at his school
• A teacher was upset by the vulgar
language and criticism
• Principal suspended the boy for
five days due to the “offensive
nature” of his site, then decided to
extend the suspension to 10 more
days
• He took the case to U.S. District
Court, First Amendment
protection of free speech meant
his suspension was
unconstitutional
• Judge agreed
• Judge said school officials did not
“show that its action [suspension
of Brandon] was caused by
something more than a mere
desire to avoid the discomfort and
unpleasantness that always
accompany an unpopular
viewpoint.”
Emmett v Kent School District
Number 415 (2000)
• Unofficial Kentlake High Home
Page- published by an 18 year old
student at the school
• Allowed visitors to vote on which
mock obituary subject posted on
the site should be “next to die”
• Shortly after school
administrators gained knowledge
of the site, a local news station
ran a story in which the site was
described as containing a “hit list”
of people to be killed
• The site contained a disclaimer
stating that the site was an
independent effort and for
entertainment purposes only,
school officials immediately
placed the site’s author on
emergency expulsion
• School’s action was based on the
policy prohibiting “harassment,
intimidation, disruption to the
educational process and violation
of Kent State District copyright”
• Expulsion was converted to a five
day suspension, student sued in
U.S. District Court on First
Amendment grounds
• Judge admitted in his ruling that
student Web sites “can be an early
indication of a student’s violent
inclinations.”
• Judge stated that the student
generated nature of the site,
combined with the failure of the
school officials to present any
evidence that “the mock
obituaries and voting on this Web
site were intended to threaten
anyone…” did not meet the
standards laid out in preceding
student free speech cases
• School district agreed to pay the
student one dollar plus attorney’s
fees and remove the student’s
suspension from school records
Beidler v North Thurston School
District Number Three (2000)
• Beidler was a junior at the high
school
• Created a Web site depicting one
of Timberline’s assistant
principals as a Nazi, drunk,
graffiti artist
• Teachers complained about
feeling uncomfortable with the
boy in their class
• Principal found Web site
“appalling and inappropriate”
• Placed boy on emergency
expulsion
• Beidler was transferred to an
alternative educational program
in district
• He took the case to Washington
state trial court
• Court agreed with Beidler
JS v Bethlehem Area School
District
• 8th grader suspended for 10 days
as a result of the Web site he
made from his personal computer
• Contained vulgar and derogatory
information about several
employees from his school
• Why should she (algebra teacher)
die? Take a look at the diagram
and reasons I give, then give me
$20 to help pay for the hitman
• Court disagreed with him- Web
site “materially disrupted the
learning environment”