* 
II. Student speech Tinker v. Des Moines (1969): Mary Beth Tinker, John F. Tinker (shown at right in 1965) and Christopher were expelled aCer they wore black armbands to school in symbolic protest of the Vietnam War, thus violaLng a school rule against armbands that had been adopted specifically to thwart their protest. The Supreme Court held that First Amendment rights, applied in light of the special characterisLcs of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their consLtuLonal rights to freedom of speech or expression at the schoolhouse gate. Tinker in detail – In December, 1965, Des Moines, Iowa residents John F. Tinker (15 years old), John’s younger sister Mary Beth Tinker (13 years old), and their friend Christopher Eckhardt (16 years old) decided to wear black armbands to their schools (high school for John and Christopher, junior high for Mary Beth) in protest of the Vietnam War and supporLng the Christmas Truce called for by Senator Robert F. Kennedy. Hearing of their plan, the principals of the Des Moines schools adopted a policy banning the wearing of armbands to school. Students defying the ban would be suspended. They could return to school only aCer agreeing to comply with the policy. Mary Beth Tinker and Christopher Eckhardt were aware of the ban and wore armbands anyway. Eckhardt was suspended that day, and Tinker, who actually took off the armband, was suspended later. The next day John Tinker wore an armband in support of Eckhardt. All three were suspended from school unLl aCer January 1, 1966, when their protest had been scheduled to end. (When they returned to school they wore black clothing instead, but this was not covered by the ban. from Abe Fortas’ opinion: [T]he wearing of armbands in the circumstances of this case was enLrely divorced from actually or potenLally disrupLve conduct by those parLcipaLng in it. It was [symbolic and therefore] closely akin to "pure speech,” which, we have repeatedly held, is enLtled to comprehensive protecLon under the First Amendment. It can hardly be argued that either students or teachers shed their consLtuLonal rights to freedom of speech or expression at the schoolhouse gate. [It’s not clear why Fortas added teachers here, but it’s interesLng that he did so.] [Fortas cites Meyer v. Nebraska (1923) as precedent: that is not a First Amendment case, but one in which the Court threw out Nebraska’s law banning foreign language instrucLon before 8th grade because it interfered with instructors’ right to pursue their profession and parental right to decide on children’s educaLon, both linked to the Fourteenth Amendment.] In West Virginia v. Barne=e, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. [from the opinion] On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental consLtuLonal safeguards, to prescribe and control conduct in the schools. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authoriLes. [A balancing exercise] There is no indicaLon that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hosLle remarks to the children wearing armbands, but there were no threats or acts of violence on school premises. The District Court concluded that the acLon of the school authoriLes was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferenLated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. [from the opinion] In order for the State in the person of school officials to jusLfy prohibiLon of a parLcular expression of opinion, it must be able to show that its acLon was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substanLally interfere with the requirements of appropriate discipline in the operaLon of the school," the prohibiLon cannot be sustained. [T]he prohibiLon of expression of one parLcular opinion, at least without evidence that it is necessary to avoid material and substanLal interference with schoolwork or discipline, is not consLtuLonally permissible. state-­‐operated schools may not be enclaves of totalitarianism. [from the opinion] The record shows that students in some of the schools wore bugons relaLng to naLonal poliLcal campaigns, and some even wore the Iron Cross, tradiLonally a symbol of Nazism. The order prohibiLng the wearing of armbands did not extend to these. Instead, a parLcular symbol—black armbands worn to exhibit opposiLon to this NaLon's involvement 511*511 in Vietnam—was singled out for prohibiLon. In other words, there was selecLve enforcement, or viewpoint discriminaLon. What is viewpoint discriminaLon? The same issue comes up later in Zamecnik. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without "materially and substanLally interfer[ing] with the requirements of appropriate discipline in the operaLon of the school" and without colliding with the rights of others. The opinion closes with a reinforcement of the school’s authority: But conduct by the student, in class or out of it, which for any reason—whether it stems from Lme, place, or type of behavior—materially disrupts classwork or involves substanLal disorder or invasion of the rights of others is, of course, not immunized by the consLtuLonal guarantee of freedom of speech. Poger Stewart’s concurrence: [A] State may permissibly determine that, at least in some precisely delineated areas, a child—like someone in a capLve audience—is not possessed of that full capacity for individual choice which is the presupposiLon of First Amendment guarantees. J. Black, dissenLng: I have never believed that any person has a right to give speeches or engage in demonstraLons where he pleases and when he pleases. This Court has already rejected such a noLon . . . . The Court clearly stated [in Cox v. Louisiana] that the rights of free speech and assembly "do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any Lme.” if the Lme has come when pupils of state-­‐supported schools . . . can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revoluLonary era of permissiveness in this country fostered by the judiciary. The next logical step, it appears to me, would be to hold unconsLtuLonal laws that bar pupils under 21 or 18 from voLng, or from being elected members of the boards of educaLon. Black dissent, conLnued: I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students' minds off their classwork and diverted them to thoughts about the highly emoLonal subject of the Vietnam war. a teacher of kindergarten, grammar school, or high school pupils no more carries into a school with him a complete right to freedom of speech and expression than an anL-­‐Catholic or anL-­‐Semite carries with him a complete freedom of speech and religion into a Catholic church or Jewish synagogue. Nor does a person carry with him into the United States Senate or House, or into the Supreme Court, or any other court, a complete consLtuLonal right to go into those places contrary to their rules and speak his mind on any subject he pleases. It is a myth to say that any person has a consLtuLonal right to say what he pleases, where he pleases, and when he pleases. Our Court has decided precisely the opposite. Black concludes with a “kids these days” argument: groups of students all over the land are already running loose, conducLng break-­‐ins, sit-­‐ins, lie-­‐ins, and smash-­‐ins. 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 rioLng, property seizures, and destrucLon. The Tinker takeaway: the First Amendment protects public school students' rights to express poliLcal and social views so long as they don’t disrupt the educaLonal process. The Tinker test is sLll used by courts today to determine whether a school's disciplinary acLons violate students' First Amendment rights. Impermissible student speech: Morse v. Frederick At a school-­‐supervised event in Juneau, Alaska, where students watched as the Olympic Torch was carried by, a high school principal (Morse) saw some of her students unfurl a large banner conveying a message she regarded as promoLng illegal drug use: “Bong Hits 4 Jesus.” School policy prohibited such messages at school events. The principal told the students to take down the banner. One student (Joseph Frederick) refused. The principal confiscated the banner and later suspended Frederick, who sued. The Ninth Circuit held that the principal's acLons violated the First Amendment, and that the student could sue the principal for damages. Morse appealed. The Supreme Court reversed, arguing that, since the banner could reasonably be read as advocaLng illegal drug use, Morse was within her rights to suspend Frederick. In his ruling, Chief JusLce Roberts wrote, the consLtuLonal rights of students in public school are not automaLcally coextensive with the rights of adults in other sepngs, and the rights of students must be `applied in light of the special characterisLcs of the school environment.'” we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. Juneau School Board Policy No. 5520 states: "The Board specifically prohibits any assembly or public expression that . . . advocates the use of substances that are illegal to minors. . . .” Roberts, ciLng the Superintendent of the Juneau schools: [Frederick's] speech was not poliLcal. He was not advocaLng the legalizaLon of marijuana or promoLng a religious belief. He was displaying a fairly silly message promoLng illegal drug usage in the midst of a school acLvity, for the benefit of television cameras covering the Torch Relay. [Frederick's] speech was potenLally disrupLve to the event and clearly disrupLve of and inconsistent with the school's educaLonal mission to educate students about the dangers of illegal drugs and to discourage their use." The District Court upheld the school district and principal Morse. The Ninth Circuit reversed: Even though the banner advocated drug use, there was no threat to disrupt, and no disrupLon, of the school acLvity. Roberts conLnued, The message on Frederick's banner is crypLc. It is no doubt offensive to some, perhaps amusing to others. To sLll others, it probably means nothing at all. Frederick himself claimed "that the words were just nonsense meant to agract television cameras.” But Principal Morse thought the banner would be interpreted by those viewing it as promoLng illegal drug use, and that interpretaLon is plainly a reasonable one. Roberts finds two plausible interpretaLons of the banner that are in violaLon of school anL-­‐drug policy: At least two interpretaLons of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperaLve: "[Take] bong hits . . ."—a message equivalent, as Morse explained in her declaraLon, to "smoke marijuana" or "use an illegal drug." AlternaLvely, the phrase could be viewed as celebraLng drug use—"bong hits [are a good thing]," or "[we take] bong hits"— and we discern no meaningful disLncLon between celebraLng illegal drug use in the midst of fellow students and outright advocacy or promoLon. Gibberish is surely a possible interpretaLon of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs. Frederick represents a stage in the consistent narrowing of student speech rights post-­‐Tinker. Roberts discusses why the speech in quesLon—the banner—isn’t covered by Tinker: it’s not poliLcal speech. He discusses why it’s different from Fraser: there a student was punished for using thinly-­‐veiled sexual references in an elecLon speech before a school assembly. Fraser ruled that a school was enLtled to ban lewd speech. Here’s what Fraser said: “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.” That punishment in Fraser was jusLfied because the school was only trying to make sure the assembly was orderly; it was not censoring student speech. And Roberts discusses why it’s different from Kuhlmeier, where the school censored a student newspaper arLcle surveying student aptudes toward pregnancy and aborLon. In Kuhlmeier, the Court held that schools could censor the student newspaper because the paper bore the school’s imprimatur. Roberts concludes that Principal Morse was jusLfied in interpreLng the banner in a way that could violate school policy, and her acLons demanding that the banner be taken down were consistent with her duLes as principal. In his final comments, Roberts says, 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 violaLon 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. In his concurrence, JusLce Thomas adds that he would go even further, overturning Tinker, since historically, children have never had any speech rights: As originally understood, the ConsLtuLon does not afford students a right to free speech in public schools. In his dissent, JusLce Stephen Breyer argues that the Court should not consider this a First Amendment case. It should find for Morse, since she did nothing more than carry out her job as principal by removing the distracLng banner, and she should not be expected to know the intricacies of First Amendment law. Furthermore, the banner, whose “plain meaning” is gibberish or nonsense, should not be viewed as advocaLng drug use: 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. Breyer conLnues, First, censorship based on the content of speech, parLcularly censorship that depends on the viewpoint of the speaker, is subject to the most rigorous burden of jusLficaLon. . . . Second, punishing someone for advocaLng illegal conduct is consLtuLonal only when the advocacy is likely to provoke the harm that the government seeks to avoid. . . . [cites Brandenburg: there is no imminent lawless acLon here] Whether or not such a rule is sensible as a mager of policy, carving out pro-­‐
drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment. Breyer cites two contradictory excerpts from the school manual: Students will not be disturbed in the exercise of their consLtuLonally guaranteed rights to assemble peaceably and to express ideas and opinions, privately or publicly, provided that their acLviLes do not infringe on the rights of others and do not interfere with the operaLon of the educaLonal program. The Board will not permit the conduct on school premises of any willful acLvity . . . that interferes with the orderly operaLon of the educaLonal program or offends the rights of others. The Board specifically prohibits . . . any assembly or public expression that . . . advocates the use of substances that are illegal to minors. He argues that the school must show that Frederick's supposed advocacy stands a meaningful chance of making otherwise-­‐abstemious students try marijuana. To support his claim that Frederick’s banner wasn’t going to persuade anybody to take drugs, Breyer quotes Holmes’ dissent in Abrams, which, he says, has “carried the day”: "nobody can suppose that the surrepLLous publishing of a silly leaflet by an unknown man [Abrams], without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.” And he adds that proscribing speech cannot depend on a third-­‐party’s interpretaLon of that speech: In Thomas v. Collins . . . we overturned the convicLon of a union organizer who violated a restraining order forbidding him from exhorLng workers. In so doing, we held that the disLncLon between advocacy and incitement could not depend on how one of those workers might have understood the organizer's speech. That would "pu[t] the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.” [Aside: what does this suggest to you English majors about interpreLng text?] And Breyer conLnues, The noLon that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its posiLon, and suggests that the principle it arLculates has no stopping point. And he reminds us that in another First Amendment case, Roberts has said, when it comes to defining what speech qualifies as the funcLonal equivalent of express advocacy . . . we give the benefit of the doubt to speech, not censorship. His dissent concludes by reminding us that discussion of allsides of an issues is always preferable to closing off debate by banning one side. Student speech: The T-­‐shirts of Naperville Zamecnik v. Indian Prairie School District Two students at Neuqua Valley High School, in Naperville, Illinois, sued the school for infringing their right of free speech by forbidding them to make a specific negaLve statement about homosexuality in response to the school-­‐
approved Day of Silence. Heidi Zamecnik [shown above in a recreaLon of the event] wore a T-­‐shirt with the slogan “Be Happy, Not Gay.” A school official inked out “not gay” because it violated the school speech code ban on “derogatory comments that refer to race, ethnicity, religion, gender, sexual orientaLon, or disability.” In Harper v. Poway Unified School District (2006), the Ninth Circuit Court of Appeals ruled that a school could prohibit a student from wearing an anL-­‐gay T-­‐shirt. In that case, aCer the Day of Silence, Harper wore a T-­‐shirt to his high school with the words “Be Ashamed, Our School Embraced What God Has Condemned" on the front and "Homosexuality Is Shameful” on the back. CiLng Tinker, the opinion holds that schools may prohibit speech that causes disrupLon or intrudes upon the rights of others: The Free Speech Clause permits public schools to restrict student speech that intrudes upon the rights of other students. Injurious speech that may be so limited is not immune from regulaLon simply because it reflects the speaker's religious views. The Harper decision labeled the anL-­‐gay message as “fighLng words,” because there had already been incidents at the school in which students had to be physically separated. The Court ruled that the message intruded upon the rights of others, in violaLon of Tinker. What are fighLng words? In Chaplinsky v. New Hampshire (1942), the Supreme Court ruled that fighLng words were not protected speech: “fighLng” words neither contributed to the expression of ideas nor possessed any “social value” in the search for truth. In that case, Walter Chaplinsky, a Jehovah's Witness, was asked to stop preaching at a busy streetcorner in downtown Rochester, NH,, because crowds who had gathered were blocking the streets. When he was being taken to the police staLon, he saw a city marshal who had earlier asked him to stop blocking the sidewalk. Chaplinsky called the marshall a "God-­‐damned racketeer" and "a damned fascist" in a public place. He was then arrested and convicted under a state law for violaLng a breach of the peace. The Supreme Court found his insults to be “fighLng words” and therefore unprotected speech. The Harper Court further stated, Speech that agacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and inLmidate them, as well as to damage their sense of security and interfere with their opportunity to learn. . . . The Court in Tinker held that a school may prohibit student speech, even if the consequence is viewpoint discriminaLon, if the speech violates the rights of other students or is materially disrupLve. Harper’s T-­‐shirt Judge Posner does not consider the Harper T-­‐shirt “fighLng words,” and he ruled in Zamecnik, “a school that permits advocacy of the rights of homosexual students cannot be allowed to sLfle criLcism of homosexuality.” [That would be viewpoint discriminaLon] Posner adds, “Be Happy, Not Gay” is not an instance of fighLng words. To jusLfy prohibiLng their display the school would have to present “facts which might reasonably lead school officials to forecast substanLal disrupLon.” Posner dismisses the argument that “Be Happy, Not Gay” can be banned because it produces hurt feelings in some students. Hurt feelings is no defense of censorship. Nor is there a “Heckler’s Veto.” The school cannot ban speech that does not contain fighLng words simply because students offended by the speech harass the speaker because they don’t like the message: the fact that homosexual students and their sympathizers harassed Zamecnik because of their disapproval of her message is not a permissible ground for banning it. Some study quesLons: 1. Compare Zamecnik to Tinker. The school claimed that Zamecnik’s anL-­‐gay T-­‐
shirt consLtuted “fighLng words.” Posner rejected that claim because, as in Tinker, no significant disrupLon occurred. 2. Compare the Naperville situaLon, which must balance speech on controversial issues, to school boards “balancing” the teaching of evoluLon with intelligent design. 3. Is Morse v. Frederick consistent with TInker, or does it represent a step backward for student speech rights? Despite the opinion in Zamecnik, many Illinois schools ban certain types of student speech, and in some cases, teachers ban certain words in their classrooms. 4. But if negaLve speech that does not rise to the level of “fighLng words” cannot be banned by schools—or at least by schools in Illinois, Wisconsin, and Indiana, the states within the 7th Circuit—then what if anything can schools do to deal with negaLve student speech and wriLng? 5. Is it possible to devise a speech code that will meet a consLtuLonal test? 6. In "To Sir, or Ma'am, with Love," I compare schools and prisons in terms of language control. How do schools control or regulate online student speech?