What are the Boundaries of Free Speech? Inside the Schoolhouse Gate

1. What are the Boundaries of Free Speech? Inside the Schoolhouse Gate The Bill of Rights Institute Webinar December 5, 2011 Artemus Ward Department of Political Science Northern Illinois University aeward@niu.edu

2. Political Speech • 1st Amendment: “Congress shall make no law . . . abridging the freedom of speech.” • As distinguished from other types of speech (commercial speech, obscene speech, etc.) the Supreme Court has consistently held that political speech is the most protected form of expression. • But what exactly constitutes political speech? And do students have the same 1st Amendment protections in school as citizens have in the public square? • In the following lecture we will cover two landmark student speech cases: Tinker v. Des Moines (1969) and Morse v. Frederick (2007).

3. Tinker v. Des Moines (1969) • John Tinker, 15, was a student at a public high school in Des Moines, Iowa. Mary Beth Tinker, his 13-year-old sister, attended junior high school. After meeting with a group of adults and students, they decided to publicize their objections to the Vietnam War by wearing black armbands to school. • School authorities became aware of the plan and adopted a policy that any student wearing an armband would be asked to remove it; if the student refused, the student would be suspended until he or she returned to school without the armband. The Tinker children wore armbands and were suspended from school.

4. Tinker v. Des Moines (1969) • Do students have the right to political expression on school grounds? • Does the state have the authority to restrict speech under its police powers: protect the health, safety, welfare, and morals of the people? • Is there a difference between elementary, middle, high school, and college students for free speech purposes?

5. Tinker v. Des Moines (1969) • Justice Fortas wrote for the Court: “In order for the state, in the person of school officials, to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” • Students do not “shed their constitutional rights when they enter the schoolhouse door.”

6. Tinker v. Des Moines (1969) • The Court ruled that this symbolic speech--"closely akin to pure speech"--could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school's educational mission. • The school allowed other forms of political expression such as Nixon and Humphrey campaign button and the Iron Cross. • School isn’t just about attending classes and learning prescribed material. It is also about intercommunication among the students.

7. Tinker v. Des Moines (1969) • In dissent, 83-year-old Justice Black was livid . . . • “I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases.”

8. Tinker v. Des Moines (1969) J. Black’s dissent continued . . . • “One does not need to be a prophet or the son of a prophet to know that after the Court's holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders. • This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and 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 rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. • Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials.” • Is Justice Black right?

9. Morse v. Frederick (2007) • At a school-sanctioned and school-supervised event—the Olympic Torch relay—, High School Principal Morse saw students unfurl a banner stating “BONG HiTS 4 JESUS,” which she regarded as promoting illegal drug use. • Juneau School Board Policy states: “The Board specifically prohibits any assembly or public expression that … advocates the use of substances that are illegal to minors” and subjects “[p]upils who participate in approved social events and class trips” to the same student conduct rules that apply during the regular school program. • Principal Morse directed the students to take down the banner. When one of the students who had brought the banner to the event—respondent Frederick—refused, Morse confiscated the banner and later suspended him. • Is Frederick’s banner protected speech under the First Amendment?

10. Chief Justice John Roberts Delivered the 5-4 Decision • Roberts upheld the suspension. He reviewed the student speech cases beginning with Tinker: “Drawing on the principles applied in our student speech cases, we have held…that “while children assuredly do not ‘shed their constitutional rights . . . at the schoolhouse gate,’ . . . the nature of those rights is what is appropriate for children in school.” • “Deterring drug use by schoolchildren is an ‘important—indeed, perhaps compelling’ interest. The special characteristics of the school environment, and the governmental interest in stopping student drug abuse—reflected in the policies of Congress and myriad school boards, including JDHS—allow schools to restrict student expression that they reasonably regard as promoting illegal drug use.” • “School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.” • Is the Chief Justice correct? Would this kind of expression by a student promote drug use among students?

11. Justice John Paul Stevens Dissenting • The dissenters made the point that Frederick’s audience was not his schoolmates but a national TV audience. His goal? To get on TV – not to promote drug use. • “I would hold that the school’s interest in protecting its students from exposure to speech ‘reasonably regarded as promoting illegal drug use,’ cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.” • Frederick’s speech “was never meant to persuade anyone to do anything.” “In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed.” • Do you agree with Justice Stevens? Why or why not?

12. Conclusion • While political speech is generally protected by the Constitution, there are restrictions, particularly in schools. • Students cannot be disruptive and cannot promote messages that school officials may deem harmful to students. • Is this fair? • Where should the line be drawn?