Ask the Experts! Free Speech in Schools

Social media and other emerging technologies are fundamentally altering how students interact and express themselves in school. Staff Attorney Linda Lye explains the history of student free speech, and discusses technology's modern twist on the First Amendment.

Can you give us an example of a landmark student free speech case?

In December 1965, a group of Iowa residents decided to wear black armbands in protest of the Vietnam War. The local schools in Des Moines adopted a policy in response, banning armbands in school. But three students, John and Mary Beth Tinker and their friend Christopher Eckhardt, stood up for their beliefs and wore their armbands to school nonetheless. They were suspended.

In Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court famously explained that neither “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” School officials can only regulate student speech if it materially or substantially disrupts the school environment, or invades the rights of others.

The ruling was a historic victory for students’ rights. The Court affirmed that school authorities cannot use their disciplinary power to censor speech simply because it is controversial or critical. As the Court explained, censoring of student speech must be “caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

What rules apply to student speech rights in public school today?

Tinker still applies. The Tinker case nicely illustrates the First Amendment values at stake because it involved classic political speech that contributes to robust debate in a democratic society, that is, exactly the sort of speech that the First Amendment was designed to protect. But Tinker is not limited to political speech. This is important because young adults need to be able to express themselves on a range of issues, whether they relate to politics, a student’s sexual orientation, or a favorite musician.

The doctrine has evolved somewhat since Tinker. The general rule now is that schools can only prohibit or regulate speech if it is lewd or obscene, advocates illegal drug use, causes a substantial disruption to the school environment, or invades the rights of others.

Unless one of these conditions applies, schools may not stop students from discussing a controversial topic, chronicling or fueling controversy by writing for the school newspaper, or criticizing school rules.

Couldn’t one argue that controversial speech substantially disrupts learning?

The First Amendment always requires us to balance competing interests. Controversial speech is exactly the kind of speech that the First Amendment was designed to foster. So schools cannot censor speech based merely on anticipating a listener’s reaction to the speech.

California has even more robust free speech protections for students than is the case in federal law, especially when it comes to student newspapers. Smith v. Novato Unified School District, a case that arose nearby, involved a student who published an editorial in the student newspaper staking out a very controversial and even offensive position on immigration. What’s important to emphasize is that his speech was not targeted at specific students; he was weighing in on the overall immigration debate. But students were really upset by what he said and there was a huge uproar on the campus. The California Court of Appeal ruled that his statements were absolutely protected.

Students these days are “digital natives”— born into the world of personal computers and social media. How is new technology challenging the way we think about free speech rights in schools?

The facts and circumstances change but the legal principles don’t. So, for example, let’s go back tothe Smith v. Novato case. The student published the editorial about immigration in the school newspaper and it was protected, even though it was controversial and some students were offended. If he then posted it on his Facebook page, and more students read it, and more students got offended, it should still be protected. The fact that his words are featured in a new platform, and can travel swiftly and reach a wider audience, doesn’t alter the law, which protects his right to speak his mind.

What is cyber-bullying, and how does it relate to the limitations on student speech?

Bullying can happen in person or online. Electronic bullying, also known as cyber-bullying, is a real and troubling phenomenon. Schools can and should act swiftly to intervene when traditional or cyber-bullying happens. Schools have a legal and moral obligation to ensure that all students can learn in a safe and welcoming environment and that they have equal access to educational opportunities.

We’re hearing about the problem with increasing frequency because a lot of the bullying that happens these days is cyber-bullying. But it’s an age-old problem schools have had to confront: When does speech cross the line from the merely controversial or offensive, to the harassing and bullying? In our view, speech, whether cyber or not, loses its constitutionally protected status once it targets and harasses a particular student, and actually affects the educational environment.

Linda, you recently worked on a case in which a student was suspended f or saying insulting things about a teacher on Facebook. Tell us a little more about that.

In this recent case, Donny, a high school sophomore in the Sacramento area, got upset when his biology teacher assigned three times the normal amount of homework. He blurted out on his Facebook page that his teacher was a “fat ass” and a “douche bag.”

Donny apologized to the teacher and even removed the posting, but the school still suspended him. Donny’s parents were not thrilled about his language. But they stood up for the principle that young people have the right to voice criticisms of authority figures, and they are absolutely correct. We informed the school district that the suspension violated Donny’s free speech rights under state and federal law, and asked that the suspension be expunged. The district quickly agreed to do so.

We are seeing many similar cases taken up by ACLU affiliates in other parts of the country. The technology changes, circumstances change, but the legal principles don’t. It’s up to all of us to be aware of our rights, and to understand the significance of the First Amendment, irrespective of the media we use to express ourselves.

This interview was conducted and compiled by ACLU of Northern California Communications Fellow Bethany Woolman.

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