Student Free Speech

A.  Supreme Court Quartet:

1) Tinker - school must show material and substantial disruption of school activities either actual or reasonably forecast to justify discipline of students for personal political expression

2) Fraser - school may discipline students for lewd and profane speech (without showing speech had any particular impact; in other words without satisfying Tinker)

3) Hazelwood - school may censor speech that occurs as part of a school-sponsored expressive activity (speech that will be perceived as bearing the imprimatur of the school) if its action is reasonably related to a legitimate educational objective

4) Morse - school can discipline student for speech that occurs during school or during a school event (even if the event takes place off campus) if the speech promotes illegal drug use when the school has a strong antidrug policy (without showing the speech had any particular impact; in other words without satisfying Tinker) (case involves a school event, but not school-sponsored expression that would be governed by Hazelwood)

B.  Public Forum Doctrine

The Supreme Court has categorized government property as falling into one of three categories for First Amendment purposes: traditional public forums, designated public forums (included limited public forums), and nonpublic forums. Different rights of access apply to each of these categories. While much public school speech is analyzed under the Supreme Court quartet, some school cases can also be analyzed by using the public forum doctrine.

1.  Lamb’s Chapel - public school allowed community groups to use the school building for certain purposes when school was not in session thus creating a designated public forum. The Supreme Court struck down the exclusion of a group that wanted to show a film about child-rearing from a religious perspective on the ground that the basis of the exclusion was the viewpoint of the film and viewpoint discrimination is not an acceptable rationale for exclusion from any of the 3 public forum categories.

2.  If a public school grants access to student organizations to use school facilities such as by posting notices on a bulletin board or making announcements over the school's loud speaker system, these actions by the school can be viewed as the creation of a limited public forum for student organizations which is subject to the restrictions imposed on the government for its administration of limited public forums. Limited public forums can be limited based on the time of the speech (afterschool, for example), the speakers who are entitled to access (only official student organizations, for example), the subject matter of the speech (information about school events, for example), and the manner of expression (no larger than a particular size for posting on a bulletin board, for example).

If a speaker falls outside the limits of a limited public forum, the speaker can challenge the limits used to define the forum. However, the limits utilized in defining the limits of the public forum must only be reasonable in light of the nature of the forum and not based on viewpoint. If a speaker satisfies all of the limits that define a limited public forum, but is nevertheless excluded, the speaker can challenge his or her exclusion because it is neither pursuant to a content-based regulation that satisfies strict scrutiny nor pursuant to a content-neutral reasonable time, place or manner restriction that satisfies intermediate scrutiny. To be constitutional, time, place, and manner restrictions must be content-neutral, narrowly tailored to accomplish an important government objective, and leave open ample alternative avenues of communication.    

C.  Unprotected Expression

The Supreme Court quartet applies to expression protected by the First Amendment. However, there are categories of speech that are not protected by the First Amendment and schools are free to regulate such speech without worrying about First Amendment limits on its authority. Examples of these include:

1) Fighting Words - words in a face-to-face exchange in the form of personal insults or epithets which are likely to cause the average person to whom the words are addressed to react violently. Fighting words do not include political statements that the hearer finds deeply offensive to his or her beliefs.

2) True Threats - defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”   

3) Incitement to Imminent Lawless Action - the government is free to punish such speech if the speech consists of advocacy of imminent lawless action in a situation where the speech is likely to produce such action.   

4) Obscenity - to be obscene, material must (1) be a work that the average person, applying contemporary community standards would find, taken as a whole, appeals to the prurient interest and (2) the work must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable obscenity law, and (3) the work, taken as a whole, must lack serious literary, artistic, political or scientific value. The test for obscenity varies when minors are the intended recipients of the speech where the issue becomes whether the test is satisfied as applied to minors (e.g., the work, taken as a whole, must lack serious literary, artistic, political or scientific value for minors). This category of speech as well as nonobscene sexually explicit speech would all fall within Fraser and Hazelwood so it is not usually relevant within the school setting.