First Amendment
in Schools
First Amendment
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“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.”
First Amendment
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Can you identify the five rights in the First
Amendment?
First Amendment
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The Five Rights
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Freedom of speech
Freedom of religion
Freedom of the press
Right to assemble peacefully
Right to petition the government
What is Speech?
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Anything that a person says or does that
is intended to convey a message that
could reasonably be expected to be
understood by others.
What is Speech?
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Speech can be non-verbal, such as
displaying a flag.
Stromberg v. California, 283 U.S. 359 (1931)
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Obscene speech is not protected.
Miller v. California, 413 U.S. 15 (1973)
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The school environment is different from
the public in that schools have the duty to
fulfill their educational mission.
Tinker v. Des Moines, 393 U.S. 503 (1969)
Prior Decisions
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Decisions of the US Supreme Court
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Case precedent and free speech
Stromberg v. California
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Stromberg was convicted of violating a California statute
that prohibited the display of a red flag or banner in any
public place or in any meeting place or public assembly
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(1) as a sign, symbol or emblem of opposition to organized
government; or
(2) as an invitation or stimulus to anarchistic action (i.e.,
overthrow of the government); or
(3) as an aid to propaganda that is of a seditious (encouraging
disorder, treasonous) character.
Stromberg v. California
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Stromberg, a member of the Young Communist League,
was a supervisor of a summer camp. Each day, a daily
ceremony was held at the camp where the children
raised a red flag and recited a pledge of allegiance to
“the workers’ red flag.”
Stromberg also possessed books and pamphlets which
called for a violent uprising and a “bloody, destructive”
war. Stromberg admitted ownership of
some of these materials, but none of them
were used in teaching at the camp.
Stromberg v. California
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Stromberg appealed her conviction to the state appellate
court contending that the statute under which she was
charged was invalid as “an unwarranted limitation on the
right of free speech.” The appellate court affirmed the
conviction.
The United States Supreme Court reversed. The Court
held that the first clause of the statute (i.e., prohibiting
the display of a flag as a sign, symbol or emblem of
opposition to organized government) violated the First
Amendment because it was broad enough to punish
peaceful and orderly opposition to government by legal
means.
Miller v. California
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Miller conducted a mass mailing campaign of “adult
material.” He sent five unsolicited advertising brochures
through the mail to a restaurant. The manager of the
restaurant and his mother opened the envelope
containing the brochures and complained to the police.
Miller was arrested and convicted of a state statute that
prohibited knowing distribution of obscene material.
The appellate court affirmed Miller’s conviction.
Miller v. California
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The United States Supreme Court vacated Miller’s
conviction and remanded. The Court held that
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“[O]bscene material is unprotected by the First Amendment.”
Therefore, obscene material may be regulated by the states, but
subject to certain safeguards.
What is obscene is to be determined by state community
standards (i.e., what is obscene in Utah may not necessarily be
obscene in New York state).
The Supreme Court remanded the case so that the lower court
could consider Miller’s case under these new standards.
School vs. Public
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The Court has recognized that students do
not shed their constitutional rights when
they enter school.
However, the Court has traditionally
recognized that the educational mission of
the school cannot be disrupted by the
exercise of free speech.
Speech rights at school differ from outside
the school environment.
Tinker v. Des Moines
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In 1968, three public school students came to
class wearing black armbands.
Fearing a disruption, the principals of the
schools suspended them.
Tinker v. Des Moines
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The students sought relief in US
District Court for the southern
district of Iowa asking for nominal
damages and an injunction against
a regulation banning the
armbands.
The petition was dismissed and on
appeal to the US Court of Appeals
for the Eighth Circuit, the decision
was affirmed with an equally
divided court. Sitting en banc the
decision was four to four.
Tinker v. Des Moines
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The United States
Supreme Court granted
certiorari.
The US Supreme Court
held in a 7-2 decision
that the wearing of the
armbands was
protected by the First
Amendment.
Tinker v. Des Moines
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Here are two clips from the oral argument
in this case.
Bethel School Dist v. Fraser
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Student Matthew Fraser delivered a speech to
600 high school students in support of a friend’s
campaign for student council during a school
assembly.
Fraser’s speech was described as being sexually
suggestive using graphic and explicit sexual
metaphor.
Several teachers noted that some students were
embarrassed and bewildered in the audience.
Many students hooted and yelled during the
speech or mimicked the sexual activities alluded
to in the speech.
Bethel School Dist. v. Fraser
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The next day, the principal suspended Fraser for
violating the disruptive conduct rule which prohibited the
use of obscene or profane language or gestures.
Fraser filed suit in Federal District Court alleging a
violation of his First Amendment right to freedom of
speech and seeking injunctive relief and damages.
The District Court held that the school’s sanctions
violated the First Amendment and that the disruptive
conduct rule was unconstitutionally vague and
overbroad. The Court of Appeals affirmed.
Bethel School Dist. v. Fraser
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The U.S. Supreme Court granted certiorari to
decide whether the First Amendment prevents a
school district from disciplining a high school
student for giving a vulgar or lewd speech at a
school assembly.
The Court held that the First Amendment did not
prevent the School District from disciplining the
respondent for giving the offensively lewd and
indecent speech during the school assembly.
Hazelwood S.D. v. Kuhlmeier
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The student editors of the Spectrum, a
school newspaper, created an issue that
included articles about student
experiences with teen pregnancy and the
impact of divorce.
Hazelwood S.D. v. Kuhmeier
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The principal banned the articles from being
published.
The principal argued that the first article risked
identifying the pregnant students and the
content about sexual activity and birth control
was not appropriate for younger students at the
school. The second article contained comments
from a student but did not allow the divorced
parents to comment on their child’s interview.
Hazelwood S.D. v. Kuhmeier
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The students filed suit alleging their First
Amendment rights had been violated by the
deletion of the articles.
The District Court held that no First Amendment
violation had occurred. The Court of Appeals
reversed.
The US Supreme Court held that no First
Amendment violation had occurred. Schools
need not tolerate speech that is inconsistent
with its educational mission.
First Amendment
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Today’s Case
You will be the justices on the US
Supreme Court to decide the First
Amendment case presented today.
Morse v. Frederick
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Read the case materials provided and
circle or highlight any and all important
facts.
Morse v. Frederick
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What are the facts of the case?
What did the principal do?
Morse v. Frederick
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Review US District Court and Ninth Circuit
decisions.
US Supreme Court grants certiorari
Does the First Amendment allow public
schools to prohibit students from
displaying messages promoting the use of
illegal drugs at school-supervised events?
Supreme Court Conference
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Individually answer the question
Yes (Rule in favor of the school)
No (Rule in favor of the students)
Give legal reasoning
Group decisions
Morse v. Frederick
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Yes
The US Supreme Court reversed the Ninth
Circuit by a 5-4 decision ruling that school
officials can prohibit students from
displaying messages that promote illegal
drug use.
The majority held that the message
although cryptic was reasonably
interpreted as promoting marijuana use.
Morse v. Frederick
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Three dissenting justices concluded that
“the schools interest in protecting its
students from exposure to speech
‘reasonably regarded as promoting illegal
drug use’ cannot justify disciplining
Frederick for his attempt to make an
ambiguous statement to a television
audience simply because it contained an
oblique reference to drugs.”
Morse v. Frederick
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The dissent believed that student speech
is protected if the message itself “neither
violates a permissible rule nor expressly
advocates conduct that is illegal and
harmful to students,” and concluded that
Frederick’s “nonsense” banner did neither.
Justice Breyer wrote separately and
expressed his belief that the majority
should not have addressed the First
Amendment issue at all, but instead,
resolved the case on alternative grounds.
Morse v. Frederick
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Here is how the Court ruled:
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Red voted with majority decision
Blue were dissenters (Justice Breyer for a
different reason)