Students Rights -- Free Speech
“Congress shall make no law . . . 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.”
-- U.S. Constitution, Amendment I
1. What is freedom of speech?
Freedom of speech is a guarantee of the First Amendment of the U.S. Constitution. It protects what you say, what you write, and your right to meet freely with other people in clubs, organizations, rallies, and demonstrations.
2. Do I have a right to freedom of speech while I am in school?
Yes. You do not surrender your constitutional rights when you enter school. In 1969, in the U.S. Supreme Court’s landmark Tinker v. Des Moines Independent School District decision, the court stated: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech . . . at the schoolhouse gate.”
3. Can the school place limits and restrictions on expressive activities, such as speech?
Yes. First Amendment rights are not absolute. To prevent disruption of the educational process, public schools can adopt reasonable rules to regulate when (“time”), where (“place”), and how (“manner”) students may exercise their free speech rights.
In some situations, speech can be restricted at school even if it would be protected if you were off school grounds. In the Tinker v. Des Moines case, the U.S. Supreme Court said students have the right to free speech at school unless their speech would cause a “material and substantial disruption” to class or school activities, or would infringe on the rights of others. Speech does not create a material and substantial disruption just because it draws attention, or because a teacher does not like it. To be a material and substantial disruption, it must be a real disruption of the class or school activity.
There are some limits on free speech that apply to everyone, whether you’re a student or not. For example, the First Amendment does not protect speech that is a “true threat.” In order to be considered a “true threat,” speech must have the intent to threaten harm. Your words must be so clear and convincing that the person has a reasonable fear for his or her safety.
The First Amendment also does not protect false personal attacks against another person that are defamatory. Defamatory speech is speech that is untrue and harms someone’s reputation, and that you know, or should have known, that it was untrue when you said or wrote it.
The right to free speech also does not protect speech that is obscene. The courts have said that speech is obscene if it deals with sex in a manner appealing to lustful interest in a patently offensive manner and lacks serious literary, artistic, political or scientific value. When speech is directed toward minors, the standard for obscenity is lower. Then, the “standard” is that speech is obscene if it appeals to the prurient, shameful, or morbid interest of minors, is patently offensive with respect to what is suitable for minors, and is without redeeming social importance for minors.
4. Can school officials ban speech that they claim is false?
Here, there is no simple answer. The law only allows the prohibition of speech that is “libelous” or “slanderous.” These are also highly technical legal terms that generally cover writing or saying something that you know, or should know, is false, that injures someone’s reputation, and that you are careless in writing (by not finding out whether it is false or not).
Nothing that you say or write can be slanderous (speaking) or libelous (writing) if it is true. Also, only information can be false -- your opinion cannot be considered libelous. The line between a fact and an opinion, however, is not always clear.
Harassment is prohibited in Vermont schools. Harassment includes things you say or expressive actions you take belittling or intimidating people who belong to what’s called “protected classes” -- African-Americans, women, gays and lesbians, disabled individuals, and people expressing religious beliefs. Once again, though, the line between harassment and free speech can be very blurry at times.
Finally, privacy considerations must sometimes also be taken into account. These considerations are often encountered when you’re writing an article for a newspaper or publishing something on the Web, where there’s an expectation many people will see the information you’re producing.
5. Can school officials prevent me from expressing an opinion because they think it is too controversial?
Generally, no. The Tinker case makes clear that students have rights, and these rights “don’t end at the schoolhouse gate.” However, these rights aren’t absolute. Tinker does allow school officials to prohibit certain speech if it disrupts the school or interferes with other students’ learning. For example, if your opinion on some topic isn’t relevant to the class you’re in, you don’t necessarily have a right to express it. If you harass other students because they’re black, Hispanic, gay, disabled, or Jewish (or any other of the “protected classes” recognized in law), the school may intervene to stop the harassment. Two further limits on student free speech rights: A U.S. Supreme Court case called Hazelwood v. Kuhlmeier allowed a school to censor an article about divorce and pregnancy that students had written for a school-sponsored newspaper. The court said such censorship is allowed “so long as their actions are reasonably related to legitimate pedagogical concerns” -- in other words, an identified educational purpose. A more recent U.S. Supreme Court case called Morse v. Frederick (known familiarly as “Bong Hits 4 Jesus”) allowed a school to censor a banner a student had unfurled at a public event outside the school. The banner said “Bong Hits 4 Jesus,” which the school claimed encouraged the use of illegal drugs. The court said that since fighting drug use was an important education goal for the school, censorship of a pro-drug message was allowed. It’s important to note that the court made clear that this censorship authority applies only to illegal drugs; it cannot be used to censor political, religious, or other forms of “protected” speech. So, generally, when you want to comment on a new school rule or the latest national news, or criticize the school administration, the school cannot censor or discipline you unless it has a good reason for believing that your expression will cause a substantial disruption or infringe on the rights of others, or unless the speech is slanderous or libelous. Speech on sensitive topics is bound to stir passionate feelings. Remind school officials that the best response is usually more speech -- not less.
6. Can I be punished for saying or writing something provocative at school?
Sometimes school authorities will try to punish students who make provocative statements or joke about school violence. They may argue that the student is threatening the safety of the school. In order for a remark to be considered a “true threat,” however, school officials must show that you intend that others take your words as a threat. Your words must be so clear and convincing that they would cause another person to really believe that you intend to carry out the threat -- and therefore have a reasonable fear for his or her safety.
When it comes to “vulgar, lewd, indecent or plainly offensive language,” the U.S. Supreme Court has given schools censorship authority through its decision in the Bethel School District No. 403 v. Fraser case. In this case, a student had made a number of sexual suggestions in a speech he gave before a school assembly. He was disciplined, and sued the school on free speech grounds. The court said that the school acted within its authority. The Tinker standard – which says that a student’s rights can only be curtailed if the speech disrupts the school or collides with other students’ rights – didn’t apply because Fraser’s remarks were “unrelated to any political viewpoint.”
7. What about a Web site?
Your right to express yourself is not limited to the technology of yesterday. It applies in cyberspace too, whether you are writing e-mails, keeping a Web blog, creating a homepage, or posting in a chat-room. However, many school officials have tried to regulate what students can and cannot post or access online. The law in this area is still developing because the technology is new, but there are a few guidelines.
On-campus Internet Speech: If you are using a school computer, you should be prepared to follow the school’s rules for the use of its equipment. Most schools have “Internet use” policies stating what those restrictions are. Any restrictions should be based on some valid educational reason. Be sure to check your school handbook for your school’s Internet use policies.
Off-campus Internet Speech: Expressing yourself from a computer outside of school is a different matter. Schools’ authority to limit student speech has generally not been extended to speech that takes place off-campus, but recent decisions have left this unclear. You should not be censored or disciplined for your expression on a private Web site, a posting on a Web blog, or a personal e-mail -- if it is sent from your personal account, on your own time, using your own resources from a computer outside of school -- even if the content is school-related. But some courts have said that schools can discipline students for off-campus Internet speech if it has disruptive effects at school. (An interesting case from Connecticut is Doninger v. Niehoff.) So exercise good judgment, recognizing that anything you post online or send in an e-mail may be seen by people other than those to whom your post or e-mail is intended. Some college admissions officers or potential employers have been known to look at applicants’ Web pages or Facebook/MySpace accounts -- or anything else that pops up when they type your name in a search engine such as Google.
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