Free Speech Principles (July 2013 School Leader Update)
Here is a review in chronological order of the top three free-speech cases relating to students and their free speech rights. Additionally, I have provided some case examples of historical developments in free speech for your review.
We the people . . .
The First Amendment
"Congress shall make no law...abridging the freedom of speech..."
- Absent either impingement on the rights of others or the likelihood of a substantial and material disruption at school, school officials may not regulate student speech at school. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733 (1969)
- Lewd, indecent, objectively offensive speech by students may be regulated by school officials. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159 (1986)
- School officials may regulate speech that appears to promote illegal or harmful activity. Morse v. Frederick, 127 S.Ct. 2618 (2007). In this case the activity was illegal drug use.
Another important free speech case to note is Hazelwood School Dist. v. Kulmeier, 484 U.S. 260, 108 S.Ct. 562 (1988). In Hazelwood the United States Supreme Court ruled that school officials may regulate content of articles in school newspaper as school-sponsored expressive activity. But – this is not true in Iowa. Shortly after Hazelwood was decided, the Iowa Legislature enacted Iowa Code section 280.22, student exercise of free expression, giving public school students in Iowa the right to exercise freedom of speech, including the right of expression in official school publications, as long as the students do not express, publish, or distribute any of the following:
- Materials that are obscene.
- Materials that are libelous or slanderous under chapter 659.
- Materials that encourage students to do any of the following:
- Commit unlawful acts.
- Violate lawful school regulations.
- Cause the material and substantial disruption of the orderly operation of the school.
Developments in Student Free Speech
1. Gang symbols
Many states, including Iowa, have statutes authorizing school districts to adopt policies that prohibit the wearing of gang-related apparel or symbols. Such policies are not immune to a successful court challenge, however. For example, in Stephenson v. Davenport Community School District, 110 F.3d 1303 (8th Cir. 1997), an honor roll student successfully sued her district when she was told to remove a small cross tattoo from her hand on penalty of suspension with a recommendation for expulsion. The student showed that her body art preceded the district’s ban on the same by two years, and that it was not indicative of any gang affiliation. The Eighth Circuit Court of Appeals’ ruling in the student’s favor came down to a determination that the district’s policy was void for vagueness.
2. “Cohen’s jacket”
While the case of Cohen v. California, 403 U.S. 15 (1971) is not a school case (indeed, it is a criminal appeal), it has given rise to the oft-used expression (used by Justice Burger in the Fraser case) that students have the right to “wear Tinker’s armband, but not Cohen’s jacket.”
Paul Cohen, while walking through the halls of the Los Angeles County Courthouse, wore a jacket bearing the plainly visible words “F--- the Draft.” Cohen was convicted of “maliciously and willfully disturbing the peace … by offensive conduct.” The contrast of “Cohen’s jacket” against “Tinker’s armband” is not unflawed. However, the expression does offer a useful example of where public schools may draw the line regarding student expressive speech. Cohen’s jacket also presents a good example of “fighting words,” that is, speech (including symbolic speech) designed to provoke and disturb others to an extreme.
3. Free speech vs. harassment
Recall that one exception in Tinker whereby school officials may regulate student speech is if the student speech impinges upon the rights of other students. Therein lies the tension at the heart of those T-shirts adorned with “demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students…that may cause them significant injury.” Harper v. Poway Unified School Dist., No. 04-1103 (S.D. Cal. 2/11/08).
The Harper court allowed the school district to ban the Harper children’s T-shirts, which communicate negative messages toward homosexuality. The front of one shirt read, “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED.” The front of the second shirt read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED.” The backs of both shirts read, “HOMOSEXUALITY IS SHAMEFUL, Romans 1:27.” On remand from the Supreme Court, the 9th Circuit later found the issue was moot because the students were no longer students and qualified immunity applied to protect from
liability those school officials sued in their individual capacities. The Court dismissed the case. Harper v. Poway Unified School Dist., 318 Fed.Appx. 540 (9th Cir. 2009). In contrast, a different court ruled that a school district must allow a high school student to wear a T-shirt bearing the message “Be Happy, Not Gay.” Nuxoll v. Indian Prairie School Dist. #204, No. 08-1050 (7th Cir. 4/23/08). These are but two cases that demonstrate that balancing rights of free speech of students with protecting other students from offensive comments is tricky business. There are no “one size fits all” solutions.
4. Bong HiTS 4 Jesus [Morse v. Frederick, 127 S.Ct. 2618 (2007)]
The U.S. Supreme Court held in Morse that a school may restrict student speech that is harmful, such as speech that appears to promote illegal drug use. It remains to be seen how far-reaching the effects of this holding will be. (For instance, if a school can demonstrate that certain student speech will lead to a decline in test scores or increased truancy, may the school intercede? How about speech that leads to more dental decay in students?)
The immediate benefit of the Morse decision was to High School Principal Deborah Morse and all public school administrators and board members everywhere. The Supreme Court’s ruling undid the Ninth Circuit’s decision that Principal Morse was not entitled to qualified immunity from the suit because the law in this area was so well settled that she should have known that it was wrong for her to take the banner away from young Mr. Frederick (now a teacher himself) and to punish him for its display.
5. Free Speech vs. Facebook.
High school student sued district, alleging her suspension from school for creating a group on a social networking website to express dislike for a teacher violated her right to free speech. On her own time and from her own computer, she created a Facebook page titled “Ms. [Teacher’s Name] is the worst teacher I’ve ever met” as an electronic “place” for students to express their feelings about the teacher. Some postings were supportive of the teacher; no postings were threatening. The teacher never saw the page, and it did not disrupt school activities. The student removed the posting after two days. After she removed it, the teacher found out about the page. The student prevailed; the court overturned her suspension for “disruptive behavior.” Evans v. Bayer, 684 F.Supp.2d 1365 (S.D. Fla. 2010).
6. My Space vs. My Teacher.
A senior with no disciplinary history and who was academically successful decided just before the Christmas recess to create a “parody profile” of one of the high school principals on MySpace.com. The profile was juvenile in its conception, vulgar in parts, and crude. It did not provide a flattering profile of the principal. The student did not use school equipment or school time to develop the profile. The court determined that the student’s off-campus speech did not result in a substantial disruption of school operations; therefore, it granted summary judgment to the student. Layshock v. Hermitage School District, 496 F.Supp.2d 587 (W.D. Pa. 2007)
A year later, another federal trial court in Pennsylvania reached the opposite conclusion, ruling that school officials did not violate a student’s free speech rights by disciplining her for creating a parody online profile of her principal, and granting the school’s motion for summary judgment. As in Layshock, the student here created a fake MySpace profile and used a photo of the principal from the district’s Web site. The personal profile section depicted the principal as a pedophile and sex addict. The court here found that Fraser’s regulation of lewd and vulgar speech applied. J.S. v. Blue Mountain School District, No. 07-585 (M.D. Pa. 9/11/08)
Both cases were appealed to the Third Circuit Court of Appeals, which decided in favor of the students in both cases. The school district in Layshock appealed this case to the U.S. Supreme Court and on January 17, 2012, the court denied hearing the case leaving the ruling in favor of student’s free speech.
1See, e.g., Iowa Code section 279.58: “… The board of directors of a school district may adopt, for the district or for an individual school within the district, a dress code policy that prohibits students from wearing gang-related or other specific apparel if the board determines that the policy is necessary for the health, safety, or positive educational environment of students and staff in the school environment or for the appropriate discipline and operation of the school.”
2Amy Stephenson chose to undergo presumably painful removal of the tattoo so as not to miss any class time.
3Justice Harlan, writing for the majority (Cohen was a 6-3 decision), took pains to note that Cohen removed his jacket and folded it over his arm before he entered a courtroom (traffic court) in the building.