7 Things You Should Know About Free Speech in Schools
Episode 1 of Free Speech Rules, a new video series by UCLA Law Professor Eugene Volokh
Watch the first episode of Free Speech Rules, a new video series on free speech and the law that's written by Eugene Volokh, the Gary T. Schwartz Distinguished Professor of Law at UCLA, and the co-founder of the Volokh Conspiracy, which is hosted at Reason.com.
The first episode looks at the seven things you should know about how the First Amendment is applied in schools:
Here are the Seven Rules of Free Speech in Schools
1. Political and religious speech is protected (Mostly)
Students, from first grade to twelfth, can't be punished based on their political or religious speech. As the Supreme Court said in the Tinker case, "It can hardly be argued that … students … shed their constitutional rights… at the schoolhouse gate."
This protects, for instance,
Wearing black armbands to protest a war
Distributing religious messages to classmates between classes.
Or criticizing a teacher over lunch.
2. Disruptive speech is not protected
But schools can punish speech that "materially disrupts schoolwork," for instance because it prompts fights.
That's why some lower courts have let schools ban clothing that displays Confederate flags, and in one case even clothing that displays an American flag on Cinco de Mayo, when that display led to violence.
That's a kind of "heckler's veto," where threats against a speaker are used by the government to justify restricting the speaker rather than the threateners. Usually the government can't impose such a heckler's veto—but the rule in schools seems to be different.
That may not seem right to you, but I don't make the law—I just make videos about it.
3. Vulgar or sexual speech is not protected
Schools can also punish students for using vulgarities or sexual innuendos. So if you do criticize that teacher over lunch, be… you know… polite about it.
4. Praising drugs is not protected
Schools can punish speech that seems to praise drug use, and probably also alcohol use and other crimes, at least when the speech doesn't seem political. That's from Morse v. Frederick, where the Supreme Court said a school could suspend a student for holding up a banner that read "BONG HiTS 4 JESUS." Yes, this is a real case. In fact, you actually can find audio of Supreme Court Justice Stephen Breyer saying (audio: "Bong Hits for Jesus, heh, heh, heh"). Which is completely surreal.
So "legalize marijuana" is probably okay; while "marijuana is awesome" probably isn't.
5. Official school newspapers are the school's own speech
You may have the right to speak at school, but you don't have the right so speak in the school newspaper. Courts see the newspaper as the school's own speech, even if students are the ones who write it. The principal has ultimate control over what goes in the newspaper, and can delete or edit any article for pretty much any reason.
6. This Only Applies to Public Schools
Everything said so far deals with public schools. Under the so-called "state action doctrine" the First Amendment doesn't limit private schools, even ones that get tax breaks or government funds.
The first words of the First Amendment are "Congress shall make no law …"—that applies to the federal government. The Fourteenth Amendment basically says no "state" shall violate people's rights—that applies the First Amendment to state and local governments. But the Constitution generally doesn't constrain private property owners, private landlords, private schools, or anyone else.
That's why, when your parents told you to stop saying rude things at the dinner table, and you asked, "What about my First Amendment rights?," they said, "Let's talk about the state action doctrine."
Or at least, that's what they should have said.
7. California is different
And…it's all different in California. Sure, everything is different in California, but what I mean is that everything I've said so far is the constitutional minimum that all states must provide. Some states have passed laws that provide more protection to students. In California, for instance,
High school students generally can't be punished for their speech even if it provokes other students into acting disruptively.
They generally can't be punished for speech about drugs or alcohol, or even vulgar speech
And public school newspapers are mostly free from being censored by the administration. Student newspapers are protected in some other states, too
Indeed, in California, all the student speech protections—but not the student newspaper speech protections—apply to private high school students as well (but not in religious high schools.)
So there you have it:
Political and religious speech is protected, but not Disruptive speech, Vulgar speech, sexual speech, or speech praising drugs.
Also, official school newspapers are the school's own speech, this stuff really only applies to Public Schools, and of course, California is different
That's the law of free speech in school, cobbled together by the Court and a few legislatures over the last 50 years or so.
Written by Eugene Volokh, a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.
This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.