First Amendment in Schools

1. First Amendmentin Schools

2. First Amendment • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

3. First Amendment • Can you identify the five rights in the First Amendment?

4. First Amendment • The Five Rights • Freedom of speech • Freedom of religion • Freedom of the press • Right to assemble peacefully • Right to petition the government

5. What is Speech? • Anything that a person says or does that is intended to convey a message that could reasonably be expected to be understood by others.

6. What is Speech? • Speech can be non-verbal, such as displaying a flag. Stromberg v. California, 283 U.S. 359 (1931) • Obscene speech is not protected. Miller v. California, 413 U.S. 15 (1973) • The school environment is different from the public in that schools have the duty to fulfill their educational mission.Tinker v. Des Moines, 393 U.S. 503 (1969)

7. Prior Decisions • Decisions of the US Supreme Court • Case precedent and free speech

8. Stromberg v. California • Stromberg was convicted of violating a California statute that prohibited the display of a red flag or banner in any public place or in any meeting place or public assembly • (1) as a sign, symbol or emblem of opposition to organized government; or • (2) as an invitation or stimulus to anarchistic action (i.e., overthrow of the government); or • (3) as an aid to propaganda that is of a seditious (encouraging disorder, treasonous) character.

9. Stromberg v. California • Stromberg, a member of the Young Communist League, was a supervisor of a summer camp. Each day, a daily ceremony was held at the camp where the children raised a red flag and recited a pledge of allegiance to “the workers’ red flag.” • Stromberg also possessed books and pamphlets which called for a violent uprising and a “bloody, destructive” war. Stromberg admitted ownership of some of these materials, but none of them were used in teaching at the camp.

10. Stromberg v. California • Stromberg appealed her conviction to the state appellate court contending that the statute under which she was charged was invalid as “an unwarranted limitation on the right of free speech.” The appellate court affirmed the conviction. • The United States Supreme Court reversed. The Court held that the first clause of the statute (i.e., prohibiting the display of a flag as a sign, symbol or emblem of opposition to organized government) violated the First Amendment because it was broad enough to punish peaceful and orderly opposition to government by legal means.

11. Miller v. California • Miller conducted a mass mailing campaign of “adult material.” He sent five unsolicited advertising brochures through the mail to a restaurant. The manager of the restaurant and his mother opened the envelope containing the brochures and complained to the police. • Miller was arrested and convicted of a state statute that prohibited knowing distribution of obscene material. • The appellate court affirmed Miller’s conviction.

12. Miller v. California • The United States Supreme Court vacated Miller’s conviction and remanded. The Court held that • “[O]bscene material is unprotected by the First Amendment.” • Therefore, obscene material may be regulated by the states, but subject to certain safeguards. • What is obscene is to be determined by state community standards (i.e., what is obscene in Utah may not necessarily be obscene in New York state). • The Supreme Court remanded the case so that the lower court could consider Miller’s case under these new standards.

13. School vs. Public • The Court has recognized that students do not shed their constitutional rights when they enter school. • However, the Court has traditionally recognized that the educational mission of the school cannot be disrupted by the exercise of free speech. • Speech rights at school differ from outside the school environment.

14. Tinker v. Des Moines • In 1968, three public school students came to class wearing black armbands. • Fearing a disruption, the principals of the schools suspended them.

15. Tinker v. Des Moines • The students sought relief in US District Court for the southern district of Iowa asking for nominal damages and an injunction against a regulation banning the armbands. • The petition was dismissed and on appeal to the US Court of Appeals for the Eighth Circuit, the decision was affirmed with an equally divided court. Sitting en banc the decision was four to four.

16. Tinker v. Des Moines • The United States Supreme Court granted certiorari. • The US Supreme Court held in a 7-2 decision that the wearing of the armbands was protected by the First Amendment.

17. Tinker v. Des Moines • Here are two clips from the oral argument in this case.

18. Bethel School Dist v. Fraser • Student Matthew Fraser delivered a speech to 600 high school students in support of a friend’s campaign for student council during a school assembly. • Fraser’s speech was described as being sexually suggestive using graphic and explicit sexual metaphor. • Several teachers noted that some students were embarrassed and bewildered in the audience. • Many students hooted and yelled during the speech or mimicked the sexual activities alluded to in the speech.

19. Bethel School Dist. v. Fraser • The next day, the principal suspended Fraser for violating the disruptive conduct rule which prohibited the use of obscene or profane language or gestures. • Fraser filed suit in Federal District Court alleging a violation of his First Amendment right to freedom of speech and seeking injunctive relief and damages. • The District Court held that the school’s sanctions violated the First Amendment and that the disruptive conduct rule was unconstitutionally vague and overbroad. The Court of Appeals affirmed.

20. Bethel School Dist. v. Fraser • The U.S. Supreme Court granted certiorari to decide whether the First Amendment prevents a school district from disciplining a high school student for giving a vulgar or lewd speech at a school assembly. • The Court held that the First Amendment did not prevent the School District from disciplining the respondent for giving the offensively lewd and indecent speech during the school assembly.

21. Hazelwood S.D. v. Kuhlmeier • The student editors of the Spectrum, a school newspaper, created an issue that included articles about student experiences with teen pregnancy and the impact of divorce.

22. Hazelwood S.D. v. Kuhmeier • The principal banned the articles from being published. • The principal argued that the first article risked identifying the pregnant students and the content about sexual activity and birth control was not appropriate for younger students at the school. The second article contained comments from a student but did not allow the divorced parents to comment on their child’s interview.

23. Hazelwood S.D. v. Kuhmeier • The students filed suit alleging their First Amendment rights had been violated by the deletion of the articles. • The District Court held that no First Amendment violation had occurred. The Court of Appeals reversed. • The US Supreme Court held that no First Amendment violation had occurred. Schools need not tolerate speech that is inconsistent with its educational mission.

24. First Amendment • Today’s Case • You will be the justices on the US Supreme Court to decide the First Amendment case presented today.

25. Morse v. Frederick • Read the case materials provided and circle or highlight any and all important facts.

26. Morse v. Frederick • What are the facts of the case? • What did the principal do?

27. Morse v. Frederick • Review US District Court and Ninth Circuit decisions. • US Supreme Court grants certiorari • Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?

28. Supreme Court Conference • Individually answer the question • Yes (Rule in favor of the school) • No (Rule in favor of the students) • Give legal reasoning • Group decisions

29. Morse v. Frederick • Yes • The US Supreme Court reversed the Ninth Circuit by a 5-4 decision ruling that school officials can prohibit students from displaying messages that promote illegal drug use. • The majority held that the message although cryptic was reasonably interpreted as promoting marijuana use.

30. Morse v. Frederick • Three dissenting justices concluded that “the schools interest in protecting its students from exposure to speech ‘reasonably regarded as promoting illegal drug use’ cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs.”

31. Morse v. Frederick • The dissent believed that student speech is protected if the message itself “neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students,” and concluded that Frederick’s “nonsense” banner did neither. • Justice Breyer wrote separately and expressed his belief that the majority should not have addressed the First Amendment issue at all, but instead, resolved the case on alternative grounds.

32. Morse v. Frederick • Here is how the Court ruled: • Red voted with majority decision • Blue were dissenters (Justice Breyer for a different reason)