AN ANALYSIS OF THE
APPLICABILITY OF FIRST
AMENDMENT FREEDOM OF
SPEECH PROTECTIONS TO
STUDENTS IN PUBLIC SCHOOLS
BRANDON JAMES HOOVER *
I. INTRODUCTION
After completing his first day of high school, one of my younger
brothers returned home and shared with the family that his vice
principal announced that students were not afforded free speech rights
while they were at school. My brother was shocked with this
proclamation because he was familiar with the First Amendment’s free
speech protections. However, he was not aware of the limitations that
have been placed on free speech. Although some surveys show that as
many as sixty-nine percent of Americans are aware of the First
Amendment right to freedom of speech, 1 it is doubtful that nearly as
many Americans are aware of the limitations that have been placed on
this enumerated fundamental right. While protections provided by the
First Amendment have been deemed “a fixed star in our constitutional
constellation,” 2 it appears that this star may not be so fixed for certain
segments of the American population and for certain types of speech.
For example, obscene speech, 3 commercial speech, 4 indecent speech, 5
* Ohio Northern University College of Law, J.D. 2008. With special thanks to
Professor C. Antoinette Clarke, Ohio Northern University.
1. Leilani Sweeney, Press Release, McCormick Foundation, Characters from “The
Simpsons” More Widely Known to Americans Than Their First Amendment Freedoms
(2006), (http://www.mccormicktribune.org/news/2006/pr030106.aspx).
2. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
3. See Roth v. United States, 354 U.S. at 476 (1957) (holding obscenity enjoys no
First Amendment protections).
4. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557
(1980) (holding that regulations on commercial speech may be upheld if there is a
39
40
UNIVERSITY OF LA VERNE LAW REVIEW
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and speech tending to incite violence or an imminent response 6 are not
given full constitutional protections.
Free speech protections have been limited for students attending
public schools across the nation. 7 In 1969, the Supreme Court held in
Tinker v. Des Moines Independent Community School District that “[i]t
can hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate.” 8 However, since its decision in Tinker, the United
States Supreme Court has consistently reduced students’ First
Amendment free speech rights. 9 The Court appears to have created an
array of tests to determine whether school students’ First Amendment
rights have been violated. 10 This paper will seek to explore the
applicability of First Amendment free speech protections to students in
public schools. The paper first reviews the current state of the law
regarding First Amendment free speech rights as applied to public high
school students. Second, it analyzes First Amendment cases dealing
with students’ rights from the Tinker case of 1969 to the Morse v.
Frederick decision of 2007. Finally, the comment concludes with a
criticism of Morse, suggesting how the Court should analyze First
Amendment issues affecting public school students in order to afford
students the most rights possible, while allowing the school to maintain
its educational mission. 11
II. CURRENT STATE OF THE LAW REGARDING FREE SPEECH RIGHTS OF
HIGH SCHOOL STUDENTS
While the First Amendment of the U.S. Constitution provides,
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
substantial government interest, if the regulation directly advances that interest, and if the
regulation is the least restrictive as possible to advance that interest).
5. See Cohen v. California, 403 U.S. 15 (1971) (holding that the First Amendment
protects an individual’s right to wear an indecent jacket with the wording “Fuck the Draft”).
But see FCC v. Pacifica Found., 438 U.S. 726 (1978) (holding that indecent speech may be
regulated if it is being broadcast because of the pervasiveness of broadcast media).
6. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that speech advocating
criminal acts may be punished if the speech was intended to incite imminent lawless action
and such speech was actually likely to produce the action).
7. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506-07 (1969).
8. Id.
9. See Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v.
Kuhlmeier 484 U.S. 260 (1988); Morse v. Frederick, 127 S. Ct. 2618 (2007).
10. Id.
11. As a practical matter, this paper will not specifically address a student’s rights in
regard to religious and/or hate speech in public schools.
2008]
FREEDOM OF SPEECH PROTECTIONS
41
speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances,” 12 certain
types of speech receive less than this full protection. These types of
speech include, but are not limited to, commercial speech, 13 obscene
speech, 14 indecent speech, 15 and speech that would incite violence or
lawlessness. 16 This paper will focus on free speech in the context of
America’s public high schools.
The current state of the law dealing with free speech rights of high
school students differs depending on which type of speech is
implicated. 17 These rules have been developed through a series of
United States Supreme Court decisions, which will be highlighted and
analyzed below. 18 For example, when dealing with symbolic student
speech and political speech, the default rule applicable to students is
that student speech may not be suppressed unless it materially and
substantially interferes with the appropriate operations of and discipline
of the school. 19 This rule was developed in Tinker, 20 which will be
discussed more fully below. On the other hand, when dealing with lewd
speech the rule is that schools do not have to tolerate lewd or vulgar
speech that interferes with its basic educational mission. 21 This rule
was developed in Bethel School District No. 403 v. Fraser. 22 When
dealing with speech rights in conjunction with items on which the
school’s imprimatur appears, the rule is that exercising editorial control
over the content of such activities is permitted so long as the school’s
actions are reasonably related to legitimate pedagogical concerns. 23
This rule was developed in Hazelwood School District v. Kuhlmeier. 24
Finally, when student speech is related to promoting illegal drug use,
schools may restrict the speech as well. 25 This rule was developed in
12. U.S. CONST. amend. I (emphasis added).
13. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557
(1980).
14. See Roth v. United States, 354 U.S. 476 (1957).
15. See FCC v. Pacifica Found., 438 U.S. 726 (1978).
16. See Brandenburg v. Ohio, 395 U.S. 444 (1969).
17. See Cent. Hudson Gas & Elec. Corp., 447 U.S. at 557; Roth, 354 U.S. at 476;
Pacifica Found., 438 U.S. at 726; Brandenburg, 395 U.S. at 444.
18. Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v.
Kuhlmeier 484 U.S. 260 (1988); Morse v. Frederick, 127 S. Ct. 2618 (2007).
19. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969) (citing
Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
20. Id.
21. Id.
22. Bethel, 478 U.S. 675.
23. Hazelwood, 484 U.S. at 260.
24. Id.
25. Morse v. Frederick, 127 S. Ct. 2618 (2007).
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UNIVERSITY OF LA VERNE LAW REVIEW
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Morse v. Frederick. 26 As will be articulated more fully below, the later
Supreme Court decisions indicate that the Court is willing to stray from
the default rule requiring “material and substantial disruption” and
apply rules more restrictive on speech. 27
III. AN ANALYSIS OF THE CASES
A. Tinker v. Des Moines Independent Community School District
1. Factual and Procedural Background
The Court’s first opportunity to consider the applicability of First
Amendment protections to school students was presented in Tinker v.
Des Moines Independent Community School District. 28 In Tinker, a
group of citizens in Des Moines, Iowa, decided to show their objections
to the ongoing hostilities in Vietnam by wearing black armbands
through the 1965 Christmas season and by fasting on December 16 and
December 31 of that year. 29 School officials, in response, adopted a
plan to prevent students from wearing armbands in school. 30 The policy
provided that any student wearing a black armband would be asked to
remove the armband; should the student refuse to do so, the student
would be suspended until the student would return to the school without
the armband. 31 Despite their knowledge of this policy, the Tinker
children and others wore black armbands to school. 32 As a result, they
were suspended on December 16, 1965 and did not return until school
started in January 1966. 33 The parents of the suspended children
brought a suit on their behalf under 42 U.S.C. § 1983, alleging a
violation of the children’s constitutional rights, and seeking nominal
damages and an injunction against the school board. 34
At trial, the district court dismissed the complaint and held that the
school authorities had acted in a constitutionally reasonable manner to
prevent a disturbance in the school. 35 However, the court also
recognized that wearing an armband was symbolic speech that would
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
Id.
Bethel, 478 U.S. at 675; Hazelwood, 484 U.S. at 260; Morse, 127 S.Ct. at 2618.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506-07 (1969).
Id. at 504.
Id.
Id.
Id.
Id.
Tinker, 393 U.S. at 504.
Id. at 505.
2008]
FREEDOM OF SPEECH PROTECTIONS
43
fall under the free speech clause of the First Amendment. 36 On appeal,
the court of appeals sitting en banc upheld the decision of the lower
court without issuing a written opinion. 37
2. Majority Opinion
At the Supreme Court, Justice Fortas’ majority opinion began with
the famous lines that would emanate in all future decisions regarding
First Amendment rights of high school students: “First Amendment
rights . . . are available to teachers and students. It can hardly be argued
that either students or teachers shed their constitutional rights to free
speech or expression at the schoolhouse gate.” 38 Specifically, the Court
noted prior decisions, which held that the Due Process Clause of the
Fourteenth Amendment forbids schools from preventing the teaching of
foreign language, 39 and a case where the Court held that students who
matriculate in public schools could not be compelled to salute the flag,
pursuant to the First Amendment. 40 The Court then determined that this
case presented a problem “that lies in the area where students in
exercise of First Amendment rights collide with the rules of the school
authorities.” 41 Specifically, the Court noted that this particular case did
not involve “aggressive, disruptive action or even group
demonstrations,” 42 nor did it “intrud[e] upon the work of the schools or
the rights of other students.” 43
The Court held that in order for a school to limit a student’s
constitutional rights, officials must have a more legitimate reason than
“a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” 44 Rather, the Court determined
that the appropriate focus is whether the student’s conduct would
“materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school.” 45 In this
particular case, the Court determined that the actions of the Tinker
36. Id.
37. Id.
38. Id. at 506.
39. Id. (citing Meyer v. Nebraska, 262 U.S. 390 (1923)).
40. Tinker, 393 U.S. at 507 (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,
642 (1943)).
41. Id.
42. Id. at 508.
43. Id.
44. Id. at 509.
45. Id. at 509 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
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children and other petitioners did not cause substantial or material
disruptions in the schools. 46
Because the black armbands worn by the Tinker children did not
cause a substantial or material disruption, the Court observed that the
school district was only acting to try to avoid a controversy which might
result. 47 Accordingly, the Court held that prohibiting “expression of
one particular opinion, at least without evidence that it is necessary to
avoid material and substantial interference with school work or
discipline, is not constitutionally permissible.” 48 Hence, the Court’s
final holding on the matter was that conduct that “materially disrupts
class work or involves substantial disorder or invasion of the rights of
others is, of course, not immunized by the constitutional guarantee of
freedom of speech.” 49 However, in this instance, the school district was
not justified in prohibiting the speech.
3. Other Opinions
Justice Stewart concurred with the decision of the Court, but did
not agree with the Court’s suggestion that “First Amendment rights of
children are co-extensive with those of adults.” 50
Justice Black filed a dissenting opinion where he articulated that
this case marked a shift into a new era where the Court creates the rules
of public schools. 51 Justice Black focused on the Court’s conclusion
that symbolic speech is protected and that public schools are good
forums for the exercise of symbolic speech. He opined that only one
issue remained: whether the schools are the proper forum for exercising
constitutional rights. 52 According to Justice Black, “I have never
believed that any person has a right to give speeches or engage in
demonstrations where he pleased and when he pleased.” 53 Additionally,
he found that the factual evidence in this case showed that the wearing
of armbands did divert students’ attention from where it should be. 54
The armbands “took the students’ minds off their class work and
46.
47.
48.
49.
50.
51.
52.
53.
54.
Tinker, 393 U.S. at 509.
Id. at 510.
Id. at 511.
Id. at 513.
Id. at 515 (Stewart, J., concurring).
Id. at 515 (Black, J., dissenting).
Tinker, 393 U.S. at 517.
Id.
Id. at 518.
2008]
FREEDOM OF SPEECH PROTECTIONS
45
diverted them to thoughts about the highly emotional subject of the
Vietnam War.” 55
Justice Black analyzed the majority opinion and found that it
appeared as though the majority had again adopted the reasonableness
test of the Lochner era. 56 In his analysis, Justice Black recognized that
the reasonableness test had been abolished for many years and that it
should not be exhumed in the present matter. 57
Finally, Justice Black endorsed the position that the purpose of
sending children to school is so that they can learn; they are not “sent to
the schools at public expense to broadcast political or any other views to
educate and inform the public.” 58 In order to maintain necessary
discipline, schools, like parents, need the ability to train children so that
they will be good citizens when they get older. 59 In light of the Court’s
holding in the present matter, Justice Black opined that children are
more likely to act out in schools and to turn away from the authority of
the school officials. 60
Justice Harlan dissented, opining that school officials need to have
discretion in order to maintain discipline and authority in the schools.61
Justice Harlan proposed the following test: give the complaining party
“the burden of showing that a particular school measure was motivated
by other than legitimate school concerns . . . while permitting
expression of the dominant opinion.” 62 Specifically, this test would
require the complainant to show that the school was engaging in
viewpoint discrimination. 63 Because no viewpoint discrimination was
present in the case at hand, Justice Harlan would have affirmed the
decision of the lower court. 64 Justice White also filed a concurring
opinion. 65
55. Id. at 518.
56. Id. at 520 (citing Lochner v. New York, 198 U.S. 45 (1905) (holding that a court
can find laws unconstitutional if the court believes legislature has not acted wisely and
reasonably in their law-making process).
57. Id. at 520-21.
58. Tinker, 393 U.S. at 522.
59. Id. at 524.
60. Id. at 525.
61. Id. at 526 (Harlan, J., dissenting).
62. Id.
63. Id.
64. Tinker, 393 U.S. at 526.
65. Id. at 515 (White, J., concurring) (Discussion of Justice White’s concurrence has
been omitted).
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B. Bethel School District v. Fraser
1. Factual and Procedural Background
The next opportunity the Court had to seriously consider the issue
of free speech rights in public high schools occurred in 1986 in the case
of Bethel School District No.403 v. Fraser. 66 In Fraser, a high school
student delivered a speech to approximately six hundred students who
were all either required to attend the assembly or report to study hall. 67
The speech was to nominate a classmate to serve as an elected student
officer. 68 Throughout his speech, Fraser referred to the student he was
endorsing “in terms of an elaborate, graphic and explicit sexual
metaphor.” 69 The concurring opinion of Justice Blackmun provided a
portion of the speech given by Fraser. 70 Prior to delivering the speech,
two teachers had warned Fraser that his proposed speech would be
inappropriate. 71 While delivering the speech, the students in the
auditorium were hooting and yelling, as well as making hand gestures to
simulate the sexual activity Fraser was alluding to in his speech. 72
The following day, Fraser was called into the principal’s office and
was given an opportunity to explain his conduct. 73 In doing so, he
admitted that he was aware of the sexual innuendo in the speech. 74
Because of his conduct, Fraser was suspended from school for three
days and was removed from the list of persons who was eligible to
speak at commencement. Fraser’s punishment was passed pursuant to
the following disciplinary rule: “Conduct which materially and
substantially interferes with the educational process is prohibited,
66. Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).
67. Id. at 677.
68. Id. at 675.
69. Id. at 678.
70. Id. at 687
“ ‘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.’ ”
71. Id. at 678.
72. Bethel, 478 U.S. at 678.
73. Id.
74. Id.
2008]
FREEDOM OF SPEECH PROTECTIONS
47
including the use of obscene, profane language, or gestures.” 75
Following his suspension, Fraser sought review of his punishment from
the school board. 76 The board upheld Fraser’s punishment, but allowed
him to return to school after serving two of the three days of his
suspension. 77
Fraser’s father subsequently brought suit on his behalf of his son,
alleging a violation of Fraser’s First Amendment rights pursuant to 42
U.S.C. §1983. 78 The district court held that the school had violated
Fraser’s rights to free speech because the school’s rule was vague and
overbroad, because removing his name from the list of potential
graduation speakers was a due process violation, and because the
school’s disciplinary rule made no mention of removal from that list
being a punishment. 79 As such, the Court awarded Fraser litigation
costs, damages, and issued an injunction forbidding the school from
removing Fraser’s name from the list of graduation speakers. 80 The
court of appeals affirmed the decision of the lower court, holding that
the speech was indistinguishable from Tinker’s armband and, like the
armband, it did not have a disruptive effect on the school. 81 On appeal,
the United States Supreme Court reversed the decision of the lower
court. 82
2. Majority Opinion
Justice Burger delivered the opinion of the Court which recognized
“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 behavior.” 83 The Court further recognized that many
speech rules exist in the United States. 84 For example, even the United
States House of Representatives has rules for speech. 85 Hence the
Court articulated that if the United States Congress may be subject to
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
Id.
Id.
Id. at 679.
Bethel, 478 U.S. at 679.
Id. at 679.
Id. (Subsequently, Fraser spoke at his high school graduation on June 8, 1983.)
Id.
Id. at 675.
Bethel, 478 U.S. at 681.
Id. at 681.
Id. at 682.
48
UNIVERSITY OF LA VERNE LAW REVIEW
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speech rules, the Court believed it to be appropriate that schools could
likewise have such regulations. 86
Additionally, the Court recognized that “[t]he First Amendment
guarantees wide freedom in matters of adult public discourse;” 87
however, adult protections do not necessarily have to be extended to
children. 88 The Court noted, “the First Amendment gives a high school
student the right to wear Tinker’s armband, but not Cohen’s jacket.” 89
The Court held that schools may determine the lessons of conduct for
students and that speech in schools cannot be conveyed in lewd or
offensive ways. 90 According to the Court’s decision, it is the school
board who appropriately has the determination of what manner of
speech is allowed in schools, and the school board does not need to
allow an absolute right for sexual or indecent speech for minors. 91
Next, the Court articulated that the Constitution does not compel
teachers to surrender control of the school to the students. 92 According
to the Court, “The First Amendment does not prevent the school
officials from determining that to permit a vulgar and lewd speech such
as respondent’s would undermine the school’s basic educational
mission.” 93 With regard to the due process argument, the Court held
that the school’s disciplinary rule was clear enough to warn Fraser he
could be punished for his actions. 94
3. Other Opinions
Justice Blackmun authored a concurring opinion which argued that
the Court was speaking too broadly when it referred to Fraser’s speech
as being “obscene,” “vulgar,” or “lewd.” 95 Justice Blackmun would
hold “in light of the discretion school officials have to teach high school
students how to conduct civil and effective public discourse and to
prevent disruption of school educational activities[,]” it was not
86. Id. (such as rules prohibiting the use of “impertinent” speech during debate and
also prohibiting the use of indecent speech).
87. Id. at 682.
88. Id.
89. Bethel, 478 U.S. at 679 (quoting Thomas v. Bd. of Educ., Granville Cent. Sch.
Dist., 607 F.2d 1043, 1057 (2d Cir. 1979)). See also Cohen, 403 U.S. at 15 (holding a jacket
with the words “Fuck the Draft” was protected under the First Amendment).
90. Bethel, 478 U.S. at 683.
91. Id. at 684.
92. Id. at 686 (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503
(1969) (Black, J.,dissenting)).
93. Id. at 685.
94. Id. at 686.
95. Id. at 687 (Blackmun, J., concurring).
2008]
FREEDOM OF SPEECH PROTECTIONS
49
unconstitutional for the school to act as it did. 96 Because Fraser’s
disruptive language was not protected, the school did not violate the
First Amendment. 97 Justice Marshall authored a dissenting opinion
where he opined that the school district failed to make a necessary
evidentiary showing that the remarks by Fraser were disruptive. 98
However, he recognized that school officials must be given wide
latitude, stating, “where such speech is involved, we may not
unquestioningly accept a teacher’s or administrator’s assertion that
certain pure speech interfered with education.” 99 Because the school
district did not bring forward enough evidence to show that Fraser was
disruptive enough to deserve punishment, Justice Marshall concluded
that the school district’s assertion of disruptiveness could not be
upheld. 100 Hence, Fraser should not have been subject to discipline.
Justice Stevens also filed a dissenting opinion, where he
determined the main problem presented in this case was a due process
problem since Fraser did not have fair notice of the “scope of the
prohibition and the consequences of its violation.” 101 The combination
of the Due Process Clause of the Fourteenth Amendment and the Free
Speech Clause of the First Amendment led Justice Stevens to this
conclusion. According to Justice Stevens, Fraser was a good student
who would not have acted in the manner he acted had he known that he
would have been punished for such actions. 102 Next, Justice Stevens
opined that Fraser would be a better judge of what would be appropriate
for his fellow classmates “than a group of judges who are at least two
generations and 3,000 miles away from the scene of the crime.” 103
In his dissenting opinion, Justice Stevens dispelled three possible
reasons why one may conclude that Fraser was aware his actions would
cause him punishment. 104 The first reason concerned the disciplinary
rule, which defined disruptive conduct. 105 While the student’s reactions
to Fraser’s speech may have been “boisterous,” Stevens did not view it
96. Bethel, 478 U.S. at 687.
97. Id. at 690 (Blackmun, J., concurring).
98. Id. (Marshall, J., dissenting).
99. Id. at 690.
100. Id.
101. Id. at 691 (Stevens, J., dissenting).
102. Bethel, 478 U.S. at 692.
103. Id.
104. The reasons that Justice Stevens dispels are not discussed in the majority opinion of
the case.
105. Bethel, 478 U.S. at 693 (Disruptive conduct defined: “Conduct which materially
and substantially interferes with the education process is prohibited, including the use of
obscene, profane language or gestures”).
50
UNIVERSITY OF LA VERNE LAW REVIEW
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as being disruptive. 106 Further, none of the letters submitted by teachers
to the school’s principal describing the event referred to the conduct as
being disruptive. 107 Justice Stevens articulated that at best this rule was
too ambiguous for a student to know what would or would not be
forbidden. 108
The second reason addressed by Justice Stevens was related to the
specific warnings by the teachers. 109 The record did not provide an
instance where a teacher told Fraser that his speech would violate the
school’s disciplinary rules. Rather, the teachers only advised him
against giving the speech. 110 The teachers did not, at any point, convey
clear, unambiguous knowledge to Fraser that his act would violate the
school’s rule on disruptive conduct. 111
Finally, Justice Stevens dispelled the obvious impropriety
argument. 112 Justice Stevens noted that there are different standards for
different places, and that what may be inappropriate in one particular
place would be appropriate in another place, and so forth. 113 In
applying this logic, Justice Stevens determined that Fraser’s speech was
not an obvious impropriety. 114
Then Justice Stevens articulated three reasons why Fraser should
not be punished. 115 First, Fraser would not have given the speech had
he known he would have been punished for it. 116 Second, there is a
strong assumption of free expression. 117 Third, the use of contemporary
community standards should have been used in evaluating speech with
sexual connotations. 118 For these reasons, Justice Stevens would have
affirmed the lower court decision.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
Id. at 693-94.
Id. at 694.
Id. at 695.
Id.
Id.
Bethel, 478 U.S. at 695.
Id. at 696.
Id.
Id.
Id.
Id.
Bethel, 478 U.S. at 696.
Id.
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FREEDOM OF SPEECH PROTECTIONS
51
C. Hazelwood School District v. Kuhlmeier
1. Factual and Procedural Background
The next opportunity for the Court to deal with First Amendment
rights of high school students arose in 1988. In Hazelwood, students
who were staff members of the Spectrum, a student newspaper, brought
an action against Hazelwood East High School for violating their First
Amendment rights. 119 The Spectrum was written and edited by
students, and was published approximately once every two to three
weeks. 120 The paper was published through funds given by the board of
education, and was the product of the Journalism II class at Hazelwood
East. 121 The policy at Hazelwood East regarding publication required
the journalism teacher to submit the page proofs of the school
newspaper to the principal of the high school for review before the
pages were sent off to the publisher. 122 When the May 13 issue of the
Spectrum was brought to the principal, he took issue with two of the
articles that were to appear in the paper. 123 The articles had to do with
experiences the students had had with pregnancy and an article on
divorce and its impact on students. 124 The principal believed that
confidentiality was an issue with the pregnancy article, and he also
believed that the “references to sexual activity and birth control were
inappropriate for some of the younger students at the school.” 125 As for
the divorce article, the principal determined “student’s parents should
have been given an opportunity to respond to these remarks or to
consent to their publication.” 126
Because this was the last paper of the school year, the principal
determined that there was not time to change the articles and still get it
to the publisher on time. 127 Therefore, he decided to remove the two
pages where the pregnancy and divorce articles appeared. Following
this decision, certain student staff members brought this action seeking
injunctive relief and monetary damages for an alleged violation of their
First Amendment rights. 128 The district court concluded that no
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
Id. at 262.
Id.
Id. at 263.
Id. at 265.
Id. at 263.
Hazelwood, 484 U.S. at 263.
Id.
Id.
Id. at 264.
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violation of the First Amendment had occurred and held that “school
officials may impose restraints on students’ speech in activities that are
an integral part of the school’s educational function including the
publication of a school-sponsored newspaper . . . so long as their
decision has a reasonable basis.” 129 The court of appeals reversed,
holding that the school paper was a public forum that was “intended to
be and operated as a conduit for student viewpoint.” 130 Because the
court determined that the school paper was a public forum, it held that
the school officials could not censor the paper unless the Tinker test was
be satisfied. 131 The court determined that the school had not presented
evidence to satisfy the Tinker test and, for this reason, the court of
appeals held that the school had violated the students’ First Amendment
rights. 132
2. Majority Opinion
Justice White delivered the opinion of the Court by discussing the
Tinker test and noting that the school board, rather than the federal
courts, is best to make decisions regarding student’s free speech
rights. 133 Justice White next considered the issue of whether the school
newspaper may be considered to be a public forum and concluded
“public schools do not possess all the attributes of streets, parks, and
other traditional public forums.” 134 Justice White compared the school
paper to these public forums and noted that the teacher of the
Journalism II class exercised a great deal of power over the school
newspaper. 135 Because of this and other reasons, the Court concluded
that the evidence relied upon by the court of appeals failed “to
demonstrate ‘the clear intent to create a public forum.’”136
The Court then distinguished the question presented in Hazelwood
from the question presented in Tinker. The Court held that the issue in
Tinker was whether a school had “to tolerate particular student
speech,” 137 and as such it differed from Hazelwood, which considered
129. Id. at 264.
130. Id.
131. Hazelwood, 484 U.S. at 264 (noting specifically that these types of public forums
could only be censored when it is “necessary to avoid material and substantial interference
with school work or discipline…or the rights of others”).
132. Id. at 266.
133. Id. at 266-67.
134. Id. at 267.
135. Id. at 268.
136. Id. at 270 (quoting Cornelius v. NAACP Legal Def. and Educ. Fund, 473 U.S. 788,
802 (1985)).
137. Hazelwood, 484 U.S. at 270.
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FREEDOM OF SPEECH PROTECTIONS
53
“whether the First Amendment requires a school affirmatively to
promote particular student speech.” 138 Here, the Court determined that
a school, when acting as publisher of a school newspaper, could not
only avoid speech that would violate the Tinker test, but also “speech
that is . . . ungrammatical, poorly written, inadequately researched,
biased or prejudiced, vulgar or profane, or unsuitable for immature
audiences.” 139 The Court further noted that a “school must be able to
take into account the emotional maturity of the intended audience in
determining whether to disseminate student speech on potentially
sensitive topics . . . .” 140
The Court ultimately held that the Tinker test did not have to be
the standard used in cases where a school will not use its name or
finances to the dissemination of student expression. 141 Hence, the Court
held “educators do not offend the First Amendment by exercising
editorial control over the style and content of student speech in schoolsponsored expressive activities so long as their actions are reasonably
related to legitimate pedagogical concerns.” 142 The Court determined
that this was the best standard because it kept control in the hands of the
local school boards.
Finally, the Court concluded that the actions of the principal in this
case were reasonable. 143 The actions were reasonable because evidence
given at trial by a teacher who read the pregnancy articles was able to
determine the identity of at least one of the anonymous students covered
in the article. 144 Therefore, by removing the article, the principal was
acting reasonably to keep these girls’ identities protected. 145
Additionally, the principal could have reasonably been concerned about
“the privacy interests of the students’ boyfriends and parents, who were
discussed in the article, but were given no opportunity to consent to its
publication or to offer a response.” 146 For those reasons, the Court
reversed the decision of the court of appeals. 147
138. Id. at 270-71.
139. Id. at 271.
140. Id. at 272 (these sensitive topics range from Santa Claus in elementary school to
sexual activity in high schools).
141. Id. at 272-73.
142. Id. at 273.
143. Hazelwood, 484 U.S. at 274.
144. Id.
145. Id.
146. Id. at 273.
147. Id. at 276.
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3. Other Opinions
Justice Brennan dissented in the case and opined, “[o]nly speech
that ‘materially and substantially interferes with the requirements of
appropriate discipline’ can be found unacceptable and therefore
prohibited” by a school. 148 Under this rule, Justice Brennan concluded
that the principal violated the students’ First Amendment rights because
the school did not prove that there would have been a material and
substantial disruption. 149 Justice Brennan determined “[f]ree student
expression undoubtedly sometimes interferes with effectiveness of the
school’s pedagogical functions” and that “[o]ther student speech,
however, frustrates the school’s legitimate pedagogical purposes merely
by expressing a message that conflicts with the school’s . . . .” 150
However, “[i]f mere incompatibility with the school’s pedagogical
message were a constitutionally sufficient justification for the
suppression of student speech, school officials could censor each of the
students or student organizations . . . converting our public schools into
‘enclaves of totalitarianism . . . .’”151 Justice Brennan thus concluded
the best balance that could be struck was the balance articulated in
Tinker. 152
Justice Brennan believed that the Court focused on three excuses
to give educators greater control of schools. 153 Tinker addressed the
first of these excuses, and according to Justice Brennan, the second was
“illegitimate” and the third was “readily achievable through less
oppressive means.” 154
Justice Brennan further clarified that he
supported the notion that the school could require the articles to be
thoroughly researched, written properly, and so forth, but held that
application of the Tinker test allowed this. “The educator may, under
Tinker, constitutionally ‘censor’ poor grammar, writing, or research
because to reward such expression would ‘materially disrupt’ the
newspaper’s curricular purpose.” 155 However, this same rationale
would not allow the school to shield the audience from the paper
148. Id. at 277 (Brennan, J., dissenting) (quoting Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503, 513 (1969)).
149. Hazelwood, 484 U.S. at 260.
150. Id. at 279.
151. Id at 280.
152. Id. at 280.
153. Id. at 280-83. (These factors were “the public educator’s prerogative to control
curriculum; the pedagogical interest in shielding the high school audience from
objectionable viewpoints and sensitive topics; and the school’s need to dissociate itself from
student expression.”)
154. Id. at 283.
155. Hazelwood, 484 U.S. at 284.
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FREEDOM OF SPEECH PROTECTIONS
55
“unless one believes that the purpose of the school newspaper is to
teach students that the press ought never report bad news, express
unpopular views, or print a thought that might upset its sponsors.” 156
Justice Brennan additionally discussed that protecting people from
sensitive topics was impermissible because it was a “vaporous nonstandard like public welfare, peace, safety, health, decency, good order,
morals, or convenience . . . .” 157
Justice Brennan concluded his dissent by recognizing that the
Tinker test should be applied in First Amendment free speech cases
dealing with high school speech and that “[a]ny yardstick less exacting
than that could result in school officials curtailing speech at the slightest
fear of disturbance.” 158 Finally, Justice Brennan pointed out “the young
men and women of Hazelwood East expected a civics lesson, but not
the one the Court teaches them today.” 159
D. Morse v. Frederick
1. Procedural and Factual Background
At a school-supervised event to watch the Olympic Torch pass
through Juneau, Alaska, a principal noticed some of her students
carrying a banner and unwrapping it. 160 The principal believed the
message advocated illegal drug use and she asked the students to take it
down. 161 Joseph Frederick, one of the students of the principal’s
school, refused to comply. 162 Instead, he unfurled the banner, which
read “BONG HiTS 4 JESUS.” 163
The principal subsequently
confiscated the banner and suspended Frederick for ten days because
she thought the banner promoted illegal drug use. 164
Frederick appealed his suspension, but the punishment was
affirmed on administrative appeal. 165 The administrator said that
Frederick was punished because he advocated for the use of illegal
drugs, not because the school disagreed with what he had said. 166 The
message was “clearly disruptive of and inconsistent with the school’s
156.
157.
158.
159.
160.
161.
162.
163.
164.
165.
166.
Id.
Id.
Id. at 289.
Id. at 290.
Morse v. Frederick, 127 S. Ct. 2622 (2007).
Id.
Id.
Id.
Id at 2622-23.
Id. at 2628.
Morse, 127 S.Ct. at 2628, App. to petition for cert. 61a.
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educational mission to educate students about the dangers of illegal
drugs.” 167 Following the administrative appeal, Frederick filed suit
under 42 U.S.C. §1983 alleging a violation of his First Amendment
rights. 168 He sought an injunction, compensatory and punitive damages,
and attorney’s fees. 169
At the district court, the school’s motion for summary judgment
was granted and the court held that there had not been an infringement
of rights, and that the school officials were entitled to qualified
immunity. 170 The court said that Principal Morse had “the authority, if
not the obligation” to stop this illegal message. 171 The Ninth Circuit
Court of Appeals reversed, holding that the school had punished
Frederick without demonstrating that his banner would have given rise
to the risk of a substantial disruption. 172 Further, the Ninth Circuit held
that the right to free speech is so clearly established that Principal
Morse would not be granted qualified immunity. 173
2. Majority Opinion
Chief Justice Roberts delivered the opinion of the Court which first
discussed the actual words displayed on Frederick’s banner—words that
were offensive to some, funny to some, and words that had no meaning
whatsoever to others, but words that appear to advocate drug usage to
Principal Morse. 174 Next, the Court established the issue to be resolved:
“whether a principal may, consistent with the First Amendment, restrict
student speech at a school event, when that speech is reasonably viewed
as promoting illegal drug use.” 175 The Court held that a principal could
do this within the bounds of the First Amendment. 176
The Court then considered prior school-related First Amendment
cases. Tinker first provided that speech could only be suppressed if it
would materially and substantially disrupt the work and discipline of the
school. 177 Next, the Court discussed Fraser and recognized that
although Fraser did not have a specific method of analysis, the
167. Id.at 2628.
168. Id. at 2623.
169. Id.
170. Id.
171. Morse, 127 S.Ct. at 2623.
172. Id.
173. Id. at 2624.
174. Id. at 2624-25.
175. Id. at 2625.
176. Id.
177. Morse, 127 S.Ct. at 2626 (citing generally Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503 (1969)).
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FREEDOM OF SPEECH PROTECTIONS
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following principles could be gleaned from the decision: the
constitutional rights of students are not equivalent to the constitutional
rights of adults; schools are special environments; and the Tinker
analysis is not absolute. 178 The Court did not rely on the holding in
Kuhlmeier because “Frederick’s banner does not have the school’s
imprimatur,” but held that the case was important to the present one
because it showed that Tinker is not the only test available for
restricting speech. 179 The Court next moved its analysis to discussing
the limited Fourth Amendment rights that students have in high
schools. 180
Additionally, the Court focused on the fact that drug abuse is a
major problem among school children in America, and that America is
against drugs. 181 Many schools have adopted policies aimed at
educating students about the dangers of illegal drug use. 182 For these
reasons, the Court held “the concern here is not that Frederick’s speech
was offensive, but that it was reasonably viewed as promoting drug
use.” 183 Therefore, the Court reversed the decision of the Ninth Circuit
and held that the First Amendment did not require schools to tolerate
expression that would contribute to the dangers of illegal drug use. 184
3. Other Opinions
Justice Thomas wrote separately to express his opinion that the
Tinker standards are without constitutional basis. 185 First Amendment
free speech protections, according to Justice Thomas, were not aimed at
all speech, but rather that “there are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problem.” 186 Justice
Thomas articulated that history dictated that school children were not
protected by free speech rights when they are in public schools. 187
178. Id. (citing generally Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 696 (1986)).
179. Id. at 2627 (citing generally Hazelwood Sch. Dist. v. Kuhlmeier 484 U.S. 260
(1988)).
180. Id. at 2627 (citing New Jersey v. TLO, 469 U.S. 325 (1985) (holding that “the
school setting requires some easing of the restrictions to which searched by public
authorities are ordinarily subject”), and Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646
(1995) (holding “4th Amendment rights are different in public schools than elsewhere”).
181. Id. at 2628.
182. Id.
183. Morse, 127 S.Ct. at 2629.
184. Id. (The Court, however, refused to adopt a broader rule proposed by the school
board that would make speech proscribable because it was plainly offensive).
185. Id. at 2629-30 (Thomas, J., concurring).
186. Id. at 2630 (quoting Chaplinksy v. New Hampshire, 315 U.S. 568, 571-72 (1942)).
187. Id. at 2630-36.
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Further, during colonial times, teachers were able to punish children by
virtue of the doctrine in loco parentis, a doctrine whereby a parent
delegates part of his parental authority to the tutor or schoolmaster of
his child for the purpose of education. 188 Courts in America applied this
doctrine to such cases as early as 1837. 189
Justice Thomas believed that Tinker provided students too
expansive free speech rights. 190 Accordingly, he expressed that the
majority was fashioning a rule which provided that “students have a
right to speak in schools except when they don’t.” 191 However, Justice
Thomas joined the Court’s opinion because it eroded Tinker. 192
According to Justice Thomas, “I think the better approach is to dispense
with Tinker altogether, and given the opportunity I would do so.” 193
Justice Alito joined the Court for a limited holding that schools can
limit speech advocating illegal drug use but that it cannot be applied to
commenting on political or social issues. 194 In his opinion, Justice Alito
observed that Tinker does not set out the only ground whereby school
speech may be regulated. 195 Further, he opined that when schools are
regulating students, they are acting as the state instead of in the place of
parents. 196 As such, the teachers need to be treated as state actors.197
Justice Alito concluded by saying that speech advocating drug use may
appropriately be banned, but that such speech is at the far reaches of the
First Amendment. 198
Justice Stevens filed a dissenting opinion where he addressed the
issue that Frederick was not addressing his classmates by unfurling the
banner, but rather was trying to elicit the attention of a camera crew so
that he could appear on television. 199 Justice Stevens stated that he
would allow the school’s principal to be covered under qualified
immunity, but that the First Amendment required more than this case
allowed. 200 In light of this, Justice Stevens proposed the following rule:
“the First Amendment protects student speech if the message itself
188.
189.
190.
191.
192.
193.
194.
195.
196.
197.
198.
199.
200.
Id. at 2632.
Morse, 127 S.Ct. at 2632.
Id. at 2633.
Id. at 2634.
Id. at 2636.
Id.
Id.
Morse, 127 S.Ct. at 2637.
Id.
Id.
Id. at 2638.
Id. at 2643 (Stevens, J., dissenting).
Id. at 2643.
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FREEDOM OF SPEECH PROTECTIONS
59
neither violates a permissible rule nor expressly advocates conduct that
is illegal and harmful to students.” 201 Applying this rule, Frederick
would be permitted to display his banner. 202
Justice Stevens further held that censorship based on content of
speech is viewpoint discrimination, which is subject to the most
rigorous justification, and that punishing people for advocating illegal
conduct is only permitted when such advocacy is likely to provoke the
harm that it advocates. 203 Justice Stevens opined that the present
decision compromised these principles because school officials could
now restrict student expression that they reasonably regard as promoting
illegal drug use—a form of viewpoint discrimination. 204 Relying on
precedent, Justice Stevens argued that “[i]f 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.” 205 Therefore, according to Justice
Stevens, the majority’s holding carved out an exception that is not
founded on precedent. 206
Further, Justice Stevens discussed that if Frederick’s banner was
drug related, the school should have proven that the sign “stands a
meaningful chance of making otherwise abstemious students try
marijuana” before suppressing it. 207 The decision of the Court did not
require such proof. 208 Additionally, Justice Stevens held that the Court
had taken real imagination in this case by saying that Frederick’s sign
incited other people to use drugs. 209 Justice Stevens gave students more
credit than what was given by the majority, holding that “some high
school students (including those who use drugs) are dumb. Most
students, however, do not shed their brains at the schoolhouse gate, and
most students know dumb advocacy when they see it.” 210
Justice Stevens concluded his dissent by recognizing that this case
began with a silly banner and ended with “a special First Amendment
rule permitting the censorship of any student speech that mentions
201.
202.
203.
204.
205.
206.
207.
208.
209.
210.
Morse, 127 S.Ct. at 2643.
Id. at 2644.
Id. (citing Brandenburg v. Ohio, 395 U.S. 444 (1969)).
Id. at 2645-46.
Id. at 2645 (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).
Id. at 2625.
Morse, 127 S.Ct. at 2647.
Id.
Id.
Id. at 2649.
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drugs, at least so long as someone could perceive that speech to contain
a latent pro-drug message.” 211
IV. DISCUSSION AND ANALYSIS
Since creating the default First Amendment free speech rule in
Tinker, the United States Supreme Court has consistently rolled back
First Amendment free speech protections to students by creating various
tests to apply to different categories of speech. 212 Most recently, the
Court carved out the exception saying that pro-drug related speech can
be suppressed in schools. 213 Prior to the Court’s ruling in Morse, many
speculated on what the result would be and whether the Court would
carve out a new exception to First Amendment protections. 214 An
article by Murad Hussain, which appeared in the Yale Law Journal
Pocket Part prior to the Court’s decision in Morse, endorsed the
position that the Court should view the Frederick decision under the
lens of the Kuhlmeier decision. 215 Hussain purported that Kuhlmeier is
a better guiding tool for Morse than the Fraser decision because “if
Frederick turn[ed] on Fraser’s solicitude for civility norms into a
general license to punish certain ideas, that could leave students too
afraid to exercise the hazardous freedom of open discourse that is so
essential to their education.” 216 Hussain believed that the petitioners in
Morse thought the student’s attendance at the torch relay had an
educational and community value, and for this reason the students were
dismissed from class to attend the function. 217 Therefore, “like plays
and concerts, the rally could be viewed as an opportunity for the school,
through its students, to express its commitment to the wider
community.” 218 The concern of Kuhlmeier of the “perception of a
school’s imprimatur by those outside the school community” would
likewise be satisfied in this case because those outside the school
community were also there to watch the relay. 219 Hussain concluded
that if the Court in Morse adopted the Kuhlmeier approach, Frederick’s
punishment could still be upheld but additional substantive First
211. Id. at 2649.
212. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986); Hazelwood Sch. Dist. v.
Kuhlmeier 484 U.S. 260 (1988); Morse v. Frederick, 127 S. Ct. 2618 (2007).
213. See generally Morse, 127 S.Ct. at 2618.
214. Murad Hussain, The “Bong” Show: Viewing Frederick’s Publicity Stunt Through
Kuhlmeier’s Lens, 116 YALE L.J. POCKET PART 292, 293-94 (2007).
215. Id. at 293.
216. Id.
217. Id. at 298.
218. Id.
219. Id.
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FREEDOM OF SPEECH PROTECTIONS
61
Amendment protections would not be infringed upon. 220 “[T]his would
be a defeat for Frederick individually [but] such a ruling would not be
the setback for First Amendment protections that an expansion of
Fraser might be.” 221 However, the Court did not use the analysis of
Kuhlmeier in the Morse decision. 222 Rather, the Court summarily
dismissed Kuhlmeier, only using the case for the proposition that it was
permissible for the Court to employ standards other than Tinker in
analyzing free speech restrictions for students. 223 However, in doing so,
the Court did not specifically expand upon the Fraser decision either.
Rather, the Court created a new test. 224 Douglas Mertz, the attorney
who represented Frederick before the Supreme Court expressed concern
that the Court had created a new subject-matter exception to the First
Amendment protections. 225 “They have carved out a subject matter that
is taboo. There can be punishment for mere mention of this topic, it
seems,” Mertz stated. 226 This new exception carved out by the Court is
problematic because it is a demonstration of the Court’s willingness to
make more exceptions to student’s free speech rights.
Hussain cautioned against judicial decisions that would “broadly
reshape[] the contours of intra-school discourse with an idiosyncratic
case in which the student was not trying to speak to anyone at the
school.” 227 However, the Court did just what Hussain cautioned
against. 228
Rather than applying the Kulhmeier lens to the present decision, a
better solution would be for the Court to consistently apply the Tinker
test to free speech cases dealing with high school students. Tinker is the
best approach because it offers a genuine appreciation of basic
enumerated constitutional rights while respecting the need for schools to
maintain discipline and educational functions. Tinker satisfies this
balance in a more satisfactory manner than any of the other decisions,
and there would be multiple benefits to applying Tinker to all cases.
The first such reason that Tinker analysis would be better than the
other methods of analysis imposed by the Court is that Tinker most
closely resembles the First Amendment of the Constitution. The First
220. Hussain, supra note 215, at 296.
221. Id.
222. Id. at 300.
223. See Morse v. Frederick, 127 S. Ct. 2618, 2627 (2007).
224. See id. at 2628.
225. Margaret Graham Tebo, High Court Hits Bong, 6 No. 26 ABA J. E-REPORT 1
(2007), 6 No. 26 ABAJEREP 1 (Westlaw).
226. Id.
227. Hussain, supra note 215, at 300.
228. See Morse, 127 S.Ct. at 2618.
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UNIVERSITY OF LA VERNE LAW REVIEW
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Amendment provides in relevant part, “Congress shall make no law . . .
abridging the freedom of speech.” 229 While few have ever held this to
be an absolute, Tinker provides a great deal of free speech protection. 230
Under Tinker, students’ free speech rights are guaranteed and can only
be suppressed when the school is 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.” 231
To satisfy this burden, the school must show that the forbidden conduct
would “materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school.” 232
However, especially in the Morse decision, the Court appears to
have the “desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” 233 In Morse, this is shown by the
Court single-handedly taking a viewpoint away from students. If the
Court applied Tinker, Frederick would have been free to exercise his
First Amendment constitutional rights and display the banner until it
began to “materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school.” 234 Where that
precise line would fall is uncertain. It would be dependent on who was
around, what manner Frederick displayed the banner in, and so forth.
However, had Frederick been afforded the Tinker protection, he would
undoubtedly have been able to, at a minimum, display his banner and
exercise his constitutional rights for more time than under the blanket
rule of Morse, which allows schools to suppress pro-drug related
speech. In dealing with enumerated fundamental rights more is
generally better than less.
Countless rationales are given as to why student’s free speech
rights should be limited, but none are persuasive. Rather, school
students should be given the opportunity to exercise constitutional rights
to better prepare them for adulthood. According to Professor Amy
Gutmann of Princeton University, “[e]ducators should . . . give students
more freedom of speech as they mature intellectually and emotionally,
and laws governing free speech in schools should increasingly respect
the free speech rights of students varied by age.” 235 Professor Gutmann
229. U.S. CONST. amend. I.
230. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
231. Id. at 509.
232. Id.
233. See id.
234. See id.
235. Amy Gutmann, What is the Value of Free Speech for Students?, 29 ARIZ. ST. L.J.
519, 523 (1997).
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FREEDOM OF SPEECH PROTECTIONS
63
discussed that free speech is of value because giving free speech rights
“enables individuals, as they mature, to accept responsibility for their
speech as well as their actions, and to learn by exchanging their own
views with other similarly responsible (and responsive) people.” 236
The decision in Morse does not recognize either of these
principles. Frederick was an eighteen-year-old senior in high school. 237
He was about to graduate. He was old enough to vote for the President
of the United States. He was old enough to go Iraq and fight to defend
the United States and all that it stands for. Despite all this, he was
unable to exercise his First Amendment right to unfurl a banner that
read “BONG HiTS 4 JESUS” because of the pro-drug message that the
Court believed his banner endorsed. 238 In prohibiting Frederick’s
speech, the school did not recognize the need for more rights as students
get older.
Furthermore, there is a distinct possibility that had Frederick
continued to hold his banner, other people would have given a response
to Frederick’s message. This banner, while seemingly nonsensical in
nature, could have spurred countless discussions in the hallways of the
school, the cafeteria, the locker room, and even dinnertime discussions
at home. These topics of conversation could range from the importance
of abstaining from drug use, the importance of using words and not
numerals in sentences, the impacts associated with attracting negative
attention, and so forth. Further, had Frederick been able to keep his
banner up, the local news crews likely would have seen his banner and
maybe even taken footage of him. From all of this, Frederick ultimately
would have had to take responsibility for his speech, whatever that
responsibility may be. Being forced to bear such responsibility would
much better prepare Frederick for the real world than being suspended
for two days and litigating a case for several years. Therefore, had the
Tinker test been applied and so long as his conduct did not cause a
material and substantial interference with the discipline of the school,
Frederick would have been allowed to exercise his constitutional rights,
possibly look like a fool, but ultimately take responsibility for his
speech.
Additionally, while the Court recognized the impressionability of
young people, Justice Stevens correctly noted, “Admittedly, some high
school students (including those who use drugs) are dumb. Most
students, however, do not shed their brains at the schoolhouse gate, and
236. Id. at 526.
237. Morse v. Frederick, 127 S. Ct. 2618, 2631 n.3 (2007).
238. Id. at 2625.
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most students know dumb advocacy when they see it.” 239 If parents
instill values, morals, and ethics in their children, their children will
know right from wrong and they will know what is good and bad
advocacy. As Justice Stevens pointed out, seeing a banner that reads
“BONG HiTS 4 JESUS” is not going to cause persons to use drugs who
would not otherwise be inclined to do so. 240
The second major reason why the Tinker standard should control is
because the Tinker test is well established. 241 When a workable test,
such as Tinker, exists for a long period of time, it is possible for
institutions to create rules that comport with the law. If the Tinker
standard were the only standard available to assess school speech,
school districts could seek advice of counsel and make good solid
constitutional rules. This would prove beneficial on many levels. First,
students would be given clear rules to distinguish permissible from
forbidden conduct. This way, if students violate the rules, the school
would not face any procedural due process issues like what was faced
and dealt with in Justice Stevens’ dissent in Fraser. 242 Further, if rules
were clearly established, it would be easier for the student to obtain
monetary damages against school administrators because the Harlow v.
Fitzgerald 243 requirement of the constitutional right being well known
would more easily be satisfied. 244 Finally, adhering to the Tinker
holding would give effect to the doctrine of stare decisis. For the above
reasons, the Tinker test is the best method available to determine
whether student’s First Amendment free speech rights have been
violated while they are in school.
With this established, it is worthwhile to determine whether the
decisions in Fraser, Hazelwood, and Morse would turn out the same
had Tinker been applied. In Fraser, the student gave a speech at a
student rally using an extended sexual metaphor. 245 The Court
ultimately ruled that the student could be punished for his speech
containing the extended sexual metaphor. 246 However, even if the
Tinker test were applied to these facts, the same results would emerge.
239. Id. at 2649.
240. Id. at 2647.
241. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
242. See Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 691 (1986) (Stevens, J., dissenting).
243. Harlow v. Fitzgerald, 457 U.S. 800 (1982) (holding that government officials are
generally shielded from liability for civil damages so long as their conduct does not violate
clearly established constitutional or statutory rights that a reasonable person would have
known).
244. Id. at 818.
245. See Bethel, 478 U.S. at 685.
246. Id. at 687.
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In order for schools to prohibit student speech, the Tinker test requires a
“material[] and substantial[] interfere[nce] with the requirements of
appropriate discipline in the operation of the school.” 247 Fraser’s
speech caused other students to yell and make inappropriate gestures. 248
Due to the students’ responses, an argument exists that Fraser’s speech
materially and substantially disrupted the appropriate discipline in the
operation of the school. In Kuhlmeier, had the Tinker test been applied,
a different outcome would have been reached. The facts of the case
only provide that the articles discussed student’s experiences with
pregnancy and divorce. 249 If the editorial staff of the student newspaper
kept the identities of those interviewed confidential, a substantial and
material disruption to the school’s discipline would not have
occurred. 250 Nothing in the facts provided that the publication of either
article would cause the school not to maintain its normal function. 251
So, unless the school could prove otherwise, under Tinker, the school
paper should have been able to publish the articles.
In Morse, the school district’s suspension of the student would
have clearly failed under the Tinker standard. The facts of the case
provide that students were already wound up, 252 that students were
throwing snowballs, 253 and so forth. 254 However, the facts do not state
that the school could no longer maintain discipline when Frederick
unfurled his banner. Had the Tinker test been applied, this decision also
would have turned out differently and Frederick would have more
expansive free speech rights.
V. CONCLUSION
Although the First Amendment is not absolute, the best approach
is to allow as many enumerated fundamental constitutional rights as
possible. In the school context, free speech rights should be as broad as
possible so long as the school can still maintain discipline and its basic
educational purpose. From the jurisprudence of the Court, it appears the
best way to do this choosing from the available tests would be to use the
Tinker test across the board in cases dealing with free speech rights of
high school students.
247.
248.
249.
250.
251.
252.
253.
254.
Tinker, 393 U.S. at 508.
Bethel, 478 U.S. at 678.
Hazelwood Sch. Dist. v. Kuhlmeier 484 U.S. 260, 263 (1988).
See e.g., id. at 260.
See id.
Morse v. Frederick, 127 S. Ct. 2618, 2622 (2007).
Id.
Id. at 2627.
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UNIVERSITY OF LA VERNE LAW REVIEW
[Vol. 30:1