In 1966, in a packed hearing in Delano, California, then New York Senator, Robert F Kennedy, was arguing with the county sheriff, LeRoy Gaylen. LeRoy had arrested union organizers who had committed no crime, claiming the organizers “looked ready to violate the law.” Bobby Kennedy retorted, "May I suggest that during the luncheon period of time that the sheriff and the district attorney read the Constitution of the United States?" (PBS). Freedom of expression is probably the the most well-known, most agreed upon, and most treasured right in the United States of America; a country in which people disagree on almost everything else, including how the constitution should be interpreted, and the degree to which civil liberties, such as the right to bear arms, should be enforced. Despite these disagreements, almost all Americans—including liberals, conservatives, libertarians, democratic socialists, or folks of almost any other ideology—support and respect the First Amendment and believe there should be little to no restrictions on the free exchange of facts, opinions, ideas, values, and beliefs. But what does freedom of expression exactly mean, and how much practical protection is there for it? When is it or is it not okay to express yourself? Freedom of expression is not as solid, straightforward, nor black-and-white as many people think. The level of protection this right has been offered has changed over time, gone through many reforms and rethinking, and ultimately depends on a variety of factors (LegalInformationInstitute). I seek to explain the evolution of freedom of expression in the United States, and the laws, past and present, regarding one of the most important and basic human rights. In this blog, I'll focus on public schools.
The primary component of freedom of expression is freedom of speech, which can take place in a direct (verbal), or indirect (actions) way (LegalInformationInstitute). Freedom of speech, like all other civil liberties, is protection of our rights by the United States constitution from the government. This means that the level of protection free speech is offered ultimately boils down to the forum on which it takes place. If you are expressing yourself on a certain forum, the regulators of that forum are allowed to curtail your free speech as they see fit, and are not violating your constitutional rights, as it is their forum, and therefore their rules. A prominent example of this is the authority of schools to curtail the free speech of students in order to create a stable environment in which all the students feel safe, and nobody is disturbed by other students’ free expression.
This can be seen in the case of Morse V. Frederick in 2007. In a school-supervised demonstration, a student named Joseph Frederick held up a banner with the message “Bong Hits 4 Jesus.” Debora Morse, the principal of his school, confiscated his banner and suspended him for 10 days (Oyez). She justified her action by arguing that Frederick had advocated illegal drug use, which was a breach of the school's policy, kind of like how when I went to elementary school, the students, such as myself, were not allowed to create any violent material (whether it was pretend play, a gesture, a drawing) within the school campus. Frederick sued under 42 U.S. Code § 1983, the federal civil rights statute, which stated that “Any citizen or resident of any US state, territory, or the District of Columbia subjected by another citizen or resident of any US state, territory, or the district of Columbia, of any constitutionally guaranteed rights, privileges, or immunities, will be liable to the injured party in legal action or other forms of proceeding for redress” (LegalInformationInstitute). The district court, however, found no constitutional violation in the school’s curtailing of Frederick’s free speech, and ruled in favor of Morse. And the court ruled that even if it was decided that Morse’s action was unconstitutional, Morse would have “qualified immunity” against a lawsuit. However, the US court of appeals for the ninth circuit rebuked the ruling of the District Court, and decided that Morse’s censoring of Frederick’s message was a violation of his first amendment right to freedom of speech.
Furthermore, Morse would have no qualified immunity because “any reasonable principal would have known that Morse’s actions were unlawful” (Oyez). So, this leaves us with two questions: does the first amendment allow public schools to curtail the free speech of students if they advocate illegal drug use? And does a school official have qualified immunity against a lawsuit under 42 U.S. Code § 1983, when they curtailed Frederick’s first amendment right to freedom of speech? The answer to these questions is “yes and not reached” (Oyez). This case ultimately made itself all the way to the Supreme Court, and they made a 5-4 decision to reverse the decisions of the ninth circuit. Justice John Roberts Jr voiced the majority opinion that school officials do have the right to curtail the free speech of their students if they advocate illegal drug use. Though Frederick’s message was cryptic, it was clearly advocating illegal drug use; therefore, the school had the right to discipline Frederick for his message. However, the four dissenters argued that while they agreed that Principle Morse should have immunity from lawsuit, “the majority opinion was “[...] deaf to the constitutional imperative to permit unfettered debate, even among high-school students [...]” (Oyez).
This is only one example which shows that freedom of speech depends on the forum in which it takes place. Public school students do not have as strong a right to freedom of speech as adults do because the schools can regulate the behavior of its students in order to make sure that the school is a safe, comfortable environment for all. On the other hand, this does not mean that students have no freedom of speech in public schools, and this can be seen in the case Tinker V. Des Moines Independent Community School District. In Tinker, the Supreme Court ruled that Iowa Public School officials had violated the First Amendment when they suspended students for wearing black armbands to school in protest of the Vietnam War. The Supreme Court said that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (freedomforuminstitute). The public school officials tried to defend themselves by claiming that the students’ action would cause disruption to the school. The Supreme Court countered this by saying that student speech cannot be censored by school officials just because they dislike it, or because it is controversial or unpopular, as this is a violation of the First Amendment. Rather, the school officials have to make an educated objective forecast of whether the students' action will cause a “substantial disruption,” a “material interference with school activities,'' or if it would “infringe on the safety and rights of others,” before they decide to curtail the speech of their students (freedomforuminstitute). The students wearing black armbands to school to protest the Vietnam War did not fit the conditions the Supreme Court created.
However, in the 1980s, a “more conservative” Supreme Court began to give public schools more permission to curtail the speech of their students (freedomforuminstitute). For example, when Matthew Fraser gave a lewd speech before the school assembly as part of a student-government campaign, the Supreme Court noted the sexual nature of Matthew’s speech, and therefore sided with the school when they suspended him. In its 1986 decision, the court wrote that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse,” and that “the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”
Two years later, the Supreme Court would restrict freedom of expression for students yet again when several students filed suit after a Missouri school principal censored two articles in the school newspaper about divorce and teen pregnancy. The principal said he felt these articles would be inappropriate and possibly disturbing for the younger kids, but the students felt that the principal was not following the Tinker standard by curtailing freedom of expression when he censored the articles. Even if the articles were inappropriate for the younger children, they would not bring about a direct disturbance in regular school activities or infringe on the safety or rights of others. However, the Supreme Court sided with the principal and, ignoring the Tinker standard, created a new standard for freedom of expression for students. In this new standard, school officials would be able to curtail the freedom of speech of the students if they showed educational reasons for their actions. The court made a broad statement when they said that the school officials could censor material that would “associate the schools with anything other than neutrality in political controversies.” (freedomforuminstitute). Doesn’t this totally contradict the ruling over the Vietnam War protest?
It seems like the Supreme Court keeps changing its opinions, but the Supreme Court is composed of people from various backgrounds and ideologies, and the majority opinion of the Supreme Court can change, though they have been extremely effective in upholding liberty for our country and us citizens as a whole.
All of this shows that the First Amendment mainly protects freedom of expression from the government, and the level of protection freedom of expression is offered largely depends on the forum on which it takes place. And what do these “forums” mean anyway? Note that this does not mean online forums, or even just a platform for expression. Also, so far, we have mainly been talking about freedom of expression for public school students. But what about freedom of expression on online forums? How well protected is that? Can social media and public servers censor freedom of expression if they feel certain posts, chats, or account names are inappropriate, hateful, misleading, misinforming, or offensive? All of these are interesting questions, and are a topic for another blog.
LegalInformationInstitute, “First Amendment.” Legal Information Institute, Legal Information Institute.
PBS, “RFK and Cesar Chavez.” PBS, Public Broadcasting Service, https://www.pbs.org/wgbh/americanexperience/features/rfk-cesar-chavez
LegalInformationInstitute, “42 U.S. Code § 1983 - Civil Action for Deprivation of Rights.” Legal Information Institute, Legal Information Institute.
Oyez, "Morse v. Frederick." Oyez. Accessed 20 Feb. 2022.
Freedomforuminstitute, “What Has the Supreme Court Said about Free Expression?” Freedom Forum Institute, freedomforuminstitute.org.
Leave a Reply