Free Speech & The First Amendment, Student Edition: How the "Schoolhouse Gate" Can Limit Students' Free Speech Rights   Tags: constitutional_law, first_amendment  

Constitutional law raises many fascinating, complex, and fundamental legal issues for individuals.  The Free Speech Clause of the First Amendment is one of the freedoms that most individuals view as a basic liberty guaranteed by the Constitution.  They are right, somewhat.  The First Amendment, specifically the Free Speech Clause, grants individuals the right to freely express themselves without government intervention.  However, there are limits to this freedom.  In particular, there are limits to students free speech rights while under a school's authority.  This guide will focus on the free speech rights of students in secondary public schools. 

Because student speech is an area of constitutional law, basic constitutional law principles and terms apply to the school's, i.e., the government's, actions and to the courts interpretation of those actions.  The following principles and terms are extremely relevant to student speech rights as well as to general constitutional law issues.  In researching Free Speech issues, courts examine:

(1) In What Type of Speech is the Speaker Engaging?  Protected vs. Unprotected Speech

Although the Constitution states that "Congress shall pass no law" that limits speech, not all speech is protected by the First Amendment.  The United States Supreme Court has held that certain types of speech do not receive First Amendment protection.  Therefore, if the speaker is engaging in unprotected speech he can generally be punished or prohibited from engaging in the speech at all.  This applies to all individuals, including students. 

• Unprotected Speech Categories -- Incitement of Illegal Activity; Fighting Words, True Threats, Obscenity, & Child Pornography

If the speaker is not engaging in these types of speech, then he is engaging in protected speech.  However, the Supreme Court has afforded different protections for different types of speech.  This guide will not discuss the various categories of protected speech, nor will it discuss their respective standards of review. 

(2) What Type of Restriction is Placed on the Speech?  Content-Based vs. Content-Neutral

The Supreme Court makes a distinction between the types of restrictions on speech. 

• Content-Based Restriction = a restriction that is based on the content of the speech
• Content-Neutral Restriction = a restriction that is not based on the topic of the speech nor based on the ideology of the message
  • e.g., regulating the time, place, or manner of speech
  • Generally, for a content-neutral regulation to be constitutional, it must:
    • (1) be a reasonable time, place, or manner restriction
    • (2) serve a significant government interest
    • (3) be narrowly tailored to server that interest
    • (4) leave ample alternative means of communication

This distinction is relevant to this guide because the courts make this distinction in student speech cases and apply different standards of review based on this distinction.  For example, if a school's regulation or punishment is content-based, the courts will apply the traditional Tinker framework analysis.  However, if the regulation is content-neutral, some courts will follow the general test for content-neutral regulations. 

(3) Where is the Speech Located?  Public Forum, Limited Public Forum, or Non-Public Forum

The Supreme Court generally treats speech differently depending on where the speech is located.  There are generally three types of government property or “forums.”  In determining the forum, one must ask “to what purpose” is this property put?  The purpose of the property will determine where the speaker is speaking which will then determine under which standard the speech will be evaluated.

Public forum

These forums are places that have been dedicated to speech from “time immemorial."  The regulation generally must be content-neutral.  As a content-neutral regulation, it must the content-neutral test as stated above.  If the regulation is content-based, if must:  (1) serve a compelling government interest; (2) be narrowly tailored to accomplish that interest; and (3) leave amply alternative means of communication. 

Limited Public Forum

The inquiry here is “did the government open this forum up in some way” for free speech?  If the court finds yes, then it will apply the pubic forum analysis. 

Non-Public Forum

These places are generally not dedicated for speech.  In order to regulate speech here, the government generally only needs to show that that the regulation is reasonable, i.e., reasonably related to a legitimate government interest and content-neutral.

Schools = Non-Public Forums

School property is considered a non-public forum during school hours of operation because the primary purpose of schools is education, not facilitating speech.  In addition, they are considered restricted environments, so the school is allowed even greater control over the speech because of the unique nature and purpose of the property than a typical nonpublic forum.  Schools are authoritarian environments where the school district may exercise control, restraint, discipline over students as is reasonably necessary to enable the educators to perform their duties and to accomplish the purposes of education. 

Here, the Courts balance the student’s fundamental constitutional or statutory right to freedom of expression against the school’s legitimate interest in maintaining discipline in educating the student population.  Courts will generally not interfere with these regulations unless there is clear abuse of discretion or unless the district interferes with a student’s constitutional right.

(4) Other Constitutional Issues?  Overbreadth and Vagueness

These are constitutional doctrines that students can use as tools to strike down school regulations they feel violate their free speech rights.  Although students will generally bring a claim against a school or school official for action taken against the student, these doctrines may provide alternative arguments for claim of a First Amendment violation.  These doctrines would likely apply to a school’s speech or dress code.

Overbreadth

A law is unconstitutionally overbroad if it captures substantially more speech than the constitution allows to be regulated.  This is a powerful tool because a person engaging in protected speech can bring a claim that the law would be unconstitutionally applied to him, and a person engaging in unprotected speech can claim that the law would be unconstitutionally applied to others.  If the person is engaging in protected speech, the Court will give the statute a narrowing construction so that the law does not reach this person.  If the person is engaging in unprotected speech, generally the Court will strike down the entire statute.

Vagueness

A law is unconstitutionally vague if a man of common intelligence cannot tell what speech is permitted and what speech is prohibited.  The remedy for vagueness is to strike down the entire statute.  The policy behind this doctrine is that vague law to do not give an individual notice of what is prohibited or permitted so that he can conform his behavior accordingly.  Further, vague laws allow for selective prosecution and a possibly standardless sweeps of enforcement.

This research guide is an introduction to the Free Speech Clause of the First Amendment with a specific focus on student free speech rights.  Specifically, this guide will focus on the free speech rights of students attending public secondary school.  This guide will not discuss students' free speech rights in private schools or in higher education such as colleges and universities.  The United States Supreme Court treats the free speech rights of students under the school's authority differently than the rights of these same individuals if they were speaking as private citizens.  The Supreme Court has created a framework for analyzing student speech that first determines the student speech as fitting under one of four judicially-created categories, and then it applies that category's standard of review to the particular student's speech at issue.

As student speech rights is a subtopic of Constitutional Law, this area of law is governed by the Constitution.  Therefore, the majority of this guide contains primary sources of case law and not administrative law resources.  In addition, because the courts evaluate student speech on a case-by-case analysis, this guide surveys the current status of the law among the Circuits of the United States Court of Appeals to examine the current application of student speech doctrine.  These cases serve as useful resources with which to analogize or distinguish a researcher's current facts or case.  This guide also provides various secondary resources as well as several starting points for computerized research in this area of law ranging from general information, to legal research, to interest group websites.

Student Dress Codes

•  Generally, dress codes must follow the Hazelwood standard.  Therefore, the dress code will be upheld as constitutional as long as it is reasonably related to legitimate pedagogical concerns.  See, e.g.,  Vines v. Bd. of Educ. of Zion Sch. Dist. No. 6, No. 01C7455, 2002 WL 58815, at *1 (N.D. Ill. Jan. 14, 2002) (holding that school is nonpublic forum, and the dress code was created to improve the safety of schools, reduce peer pressure and socio-economic competition, improve students’ self-concepts, classroom behavior and academic performance, and reduce vulgar, profane, or obscene disruptions to the educational process.  These were legitimate pedagogical concerns, and the dress code restrictions on student’s express were reasonably related to these pedagogical concerns.  Therefore, the dress code constitutionally regulated the student’s First Amendment free speech rights in the nonpublic forum of her school).

• Often a student punished for violating his or her school's dress code will bring a free speech challenge not only against the school for his punishment, but also against the school for the school's dress code being unconstitutional as violative of the Free Speech Clause of the First Amendment and possibly unconstitutionally overbroad.

Student Speech Codes

• Based upon the Supreme Court’s reasoning in Tinker, Fraser, and Hazelwood many school districts developed official codes governing student speech.  These codes are typically called “antiharassment policies”, indicating their objective to prohibit abusive behavior among students and creating a safer learning environment.  Often, the policies define “harassment” and give examples of harassment in a non-exhaustive list.  Also, generally, another section of the policy prohibits harassment on the based of characteristics such as “clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies or values.”  These codes must be constitutional.  See, e.g., Heinkel ex rel. Heinkel v. Sch. Bd. of Lee County, Fla., 194 Fed. App'x. 604 (11th Cir. 2006).

• Students will often challenge their school's speech codes as unconstitutional in violation of their free speech rights under the First Amendment as well as bring a challenge that speech code is unconstitutionally overbroad.

Threats  

• There is no First Amendment protection for "true" threats.  See, e.g., Doe v. Pulaski Co. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) (school's suspension of eighth-grade student did not violate the student's free speech rights because a letter he wrote to a classmate speaking of raping and murdering her constituted a true threat, speech that is not protected by the First Amendment).  However, there the circuits split over what constitutes a threat, i.e., whether the determination is made from the perspective of a reasonable listener or a reasonable speaker. 

• This related topic is relevant to student speech because student speech can often be classified both as an uprotected "true" threat and as protected speech under the Tinker standard.

Compelled speech

• Just as the Free Speech Clause of the First Amendment protects students' rights to speak, it also protects their right to be silent and not to speak.  See, e.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (holding state law that required children to salute flag unconstitutional); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) (holding that a student has a right to be free from compelled speech, and that right protects public school students from being forced to participate in the flag salute).

• Students may also bring this as the basis for a First Amendment Free Speech challenge to a school's action.
  

Shannon McNulty is a law student at Georgia State University’s College of Law and will graduate in May 2010.  After graduation, she will serve as the staff attorney for the Honorable Judge John J. Goger, in the Fulton County Superior Court, Atlanta, Georgia for two years.  This bibliography was written in the Spring 2010 section of Dean Nancy Johnson’s Advanced Legal Research class.  For more information about this bibliography, send an email to njohnson@gsu.edu.

This research guide serves as a starting point for a law student or an attorney in researching the issues of student speech rights under the Free Speech Clause of the First Amendment.  This is a very active area of law in the nation, and it is imperative to Shepardize or KeyCite all cases and statutes before relying on them.  This guide does not constitute legal advice or a legal opinion on any specific facts or circumstances.  The materials below do not address all issues that will arise, and researchers should read the full text of the cited resources.  If you need further assistance in researching this topic or have specific legal questions, please contact a reference librarian in the Georgia State University College of Law library or consult an attorney.