What are the Boundaries of Free
Speech? Inside the Schoolhouse Gate
The Bill of Rights Institute
Webinar
December 5, 2011
Artemus Ward
Department of Political Science
Northern Illinois University
aeward@niu.edu
Political Speech
 1st Amendment: “Congress shall make no law . . . abridging the
freedom of speech.”
 As distinguished from other types of speech (commercial
speech, obscene speech, etc.) the Supreme Court has
consistently held that political speech is the most protected form
of expression.
 But what exactly constitutes political speech? And do students
have the same 1st Amendment protections in school as citizens
have in the public square?
 In the following lecture we will cover two landmark student
speech cases: Tinker v. Des Moines (1969) and Morse v.
Frederick (2007).
Tinker v. Des Moines (1969)
 John Tinker, 15, was a student at a
public high school in Des Moines,
Iowa. Mary Beth Tinker, his 13-yearold sister, attended junior high school.
After meeting with a group of adults
and students, they decided to publicize
their objections to the Vietnam War
by wearing black armbands to school.
School authorities became aware of the plan and adopted a policy that any
student wearing an armband would be asked to remove it; if the student
refused, the student would be suspended until he or she returned to school
without the armband. The Tinker children wore armbands and were
suspended from school.
Tinker v. Des Moines (1969)
 Do students have the right to
political expression on school
grounds?
 Does the state have the authority to
restrict speech under its police
powers: protect the health, safety,
welfare, and morals of the people?
 Is there a difference between
elementary, middle, high school,
and college students for free speech
purposes?
Tinker v. Des Moines (1969)
 Justice Fortas wrote for the Court: “In
order for the state, in the person of
school officials, to justify prohibition
of a particular expression of opinion, it
must be able to show that its action
was caused by something more than a
mere desire to avoid the discomfort
and unpleasantness that always
accompany an unpopular viewpoint.”
 Students do not “shed their
constitutional rights when they enter
the schoolhouse door.”
Tinker v. Des Moines (1969)
 The Court ruled that this symbolic
speech--"closely akin to pure speech"-could only be prohibited by school
administrators if they could show that
it would cause a substantial
disruption of the school's educational
mission.
 The school allowed other forms of
political expression such as Nixon and
Humphrey campaign button and the Iron
Cross.
 School isn’t just about attending classes
and learning prescribed material. It is
also about intercommunication among
the students.
Tinker v. Des Moines (1969)
 In dissent, 83-year-old Justice
Black was livid . . .
 “I have never believed that
any person has a right to give
speeches or engage in
demonstrations where he
pleases and when he
pleases.”
Tinker v. Des Moines (1969)
J. Black’s dissent continued . . .
 “One does not need to be a prophet or the son of a prophet to know that after the
Court's holding today some students in Iowa schools and indeed in all schools will
be ready, able, and willing to defy their teachers on practically all orders.
 This is the more unfortunate for the schools since groups of students all over the
land are already running loose, conducting break-ins, sit-ins, lie-ins, and smashins. Many of these student groups, as is all too familiar to all who read the
newspapers and watch the television news programs, have already engaged in
rioting, property seizures, and destruction. They have picketed schools to force
students not to cross their picket lines and have too often violently attacked earnest
but frightened students who wanted an education that the pickets did not want
them to get.
 Students engaged in such activities are apparently confident that they know far
more about how to operate public school systems than do their parents, teachers,
and elected school officials.”
 Is Justice Black right?
Morse v. Frederick (2007)
 At a school-sanctioned and school-supervised event—the Olympic Torch
relay—, High School Principal Morse saw students unfurl a banner stating
“BONG HiTS 4 JESUS,” which she regarded as promoting illegal drug use.
 Juneau School Board Policy states: “The Board specifically prohibits any
assembly or public expression that … advocates the use of substances that are
illegal to minors” and subjects “[p]upils who participate in approved social
events and class trips” to the same student conduct rules that apply during the
regular school program.
 Principal Morse directed the students to take down the banner. When one of the
students who had brought the banner to the event—respondent Frederick—
refused, Morse confiscated the banner and later suspended him.
 Is Frederick’s banner protected speech under the First Amendment?
Chief Justice John Roberts
Delivered the 5-4 Decision




Roberts upheld the suspension. He reviewed the student speech cases
beginning with Tinker: “Drawing on the principles applied in our student
speech cases, we have held…that “while children assuredly do not ‘shed
their constitutional rights . . . at the schoolhouse gate,’ . . . the nature of
those rights is what is appropriate for children in school.”
“Deterring drug use by schoolchildren is an ‘important—indeed, perhaps
compelling’ interest. The special characteristics of the school environment,
and the governmental interest in stopping student drug abuse—reflected in
the policies of Congress and myriad school boards, including JDHS—allow
schools to restrict student expression that they reasonably regard as
promoting illegal drug use.”
“School principals have a difficult job, and a vitally important one. When
Frederick suddenly and unexpectedly unfurled his banner, Morse had to
decide to act—or not act—on the spot. It was reasonable for her to conclude
that the banner promoted illegal drug use—in violation of established school
policy—and that failing to act would send a powerful message to the
students in her charge, including Frederick, about how serious the school
was about the dangers of illegal drug use. The First Amendment does not
require schools to tolerate at school events student expression that
contributes to those dangers.”
Is the Chief Justice correct? Would this kind of expression by a student
promote drug use among students?
Justice John Paul Stevens
Dissenting
 The dissenters made the point that Frederick’s audience was not
his schoolmates but a national TV audience. His goal? To get on
TV – not to promote drug use.
 “I would hold that the school’s 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. The First Amendment demands more, indeed, much more.”
 Frederick’s speech “was never meant to persuade anyone to do
anything.” “In my judgment, the First Amendment protects
student speech if the message itself neither violates a permissible
rule nor expressly advocates conduct that is illegal and harmful to
students. This nonsense banner does neither, and the Court does
serious violence to the First Amendment in upholding—indeed,
lauding—a school’s decision to punish Frederick for expressing a
view with which it disagreed.”
 Do you agree with Justice Stevens? Why or why not?
Conclusion
 While political speech is
generally protected by the
Constitution, there are
restrictions, particularly in
schools.
 Students cannot be disruptive
and cannot promote messages
that school officials may deem
harmful to students.
 Is this fair?
 Where should the line be
drawn?