M. Riddle (Edison): Kid! You Have Freedom of Speech, but You Can’t Say That

17. January 2009 by student.

“Persecution for the expression of opinions seems perfectly logical.” When Justice Oliver Wendell Holmes first penned this thought in his dissenting opinion on Abrams v. United States (1919), America was left to speculate whether he was referring to the censorship impulse that can be found in the citizenry of this country both individually and collectively. As caring and responsible citizens of our society, it is not unrealistic that we would want a viable sense of security, order, civility, tolerance, well being, and more from our governing bodies, and the laws that these bodies enact. When confronted by those whose opinions seem to challenge or threaten these aspirations, many of us are tempted to sweep away this opposition under the guise of law and legislation. And to this point is the corner-stone of our right to free speech.

The First Amendment protects the right of citizens to express themselves in a variety of ways. With this in mind then, can public school students, as young citizens, engage in modes of expression from the words that they speak, to the ideas that they write, and even in the clothes that they wear? Every student should be encouraged to engage in political speech and expression, which is considered the type of speech at the core of the First Amendment, and that which the Founding Fathers considered essential to the development of a constitutional democracy. This belief was reinforced and made clear by the United States Supreme Court with the outcome of Tinker v. Des Moines Independent School District (1969) by equivocating the wearing of certain apparel “akin to pure speech”. But wait a moment, the Supreme Court, in the very same ruling, also gave schools a caveat in that the expression or speech must be a “non-disruptive, passive expression of a political viewpoint”.

By establishing a protective standard for student expression that school and government officials cannot censor, the court also provided a means of challenge to those very same people to question the speech or expression based upon their belief, thought, or opinion that the articulation or demonstration would cause substantial disruptions of normal school activities, or invade the rights of others. Although students have the right to free speech and expression, they do not have the liberty to express themselves in an unlimited form or fashion. As a result, recent years have seen several students punished for their interpretation of what free speech is, and what it is not based upon the school officials’ reasonable forecast or expectation that the student’s expression would cause that substantial disruption to normal daily activities. Conversely, we have also seen school districts and administrations censured for over-stepping the bounds of censorship of these expressions.

                So how can we properly define freedom of speech and/or expression for school students without treading into the realm of censorship? This seems to be the central theme for numerous arguments and litigation across decades of cases heard by various courts throughout the country, ultimately leading back to the Supreme Court’s ruling that stated students “…do not shed their constitutional rights to freedom of speech and expression at the school house gate…” (Justice Abe Fortas Tinker v. Des Moines Independent School District (1969)). This watermark ruling provides students with a range of free-expression rights under the First Amendment; however, they are not free to express themselves in an unlimited form or fashion. The same court also stated unanimously in its decision of Chaplinskey v. New Hampshire (1942): “…It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech…These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace…”

                These limitations were again reinforced in 1986 when the Supreme Court ruled in Bethel School District No. 403 v. Fraser that school officials did not violate the First Amendment rights of a student suspended for giving a vulgar and lewd speech before a student assembly by ruling “…the 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”. Consequently, while public school students do possess First Amendment freedoms, the courts allow school officials to regulate certain types of student expression.

                Defining and separating what seems to be acceptable and appropriate to what is deemed acceptable and appropriate for students appears to be an immense undertaking for many. It encompasses sexual orientation, sexual harassment, “fighting words”, obscenity, profanity, pornography, racial slurs and symbols, and so much more. All of which are being wrestled with in our courts on a daily basis with the claim that many schools are over-reacting to a few recent sensationalistic school incidents by clamping down on any student expression deemed offensive or disagreeable. Although school officials must ensure a safe learning environment, many fear that in so doing, school officials have ignored students’ First Amendment rights, and have ventured precariously into the realm of censorship.

No one should attempt to ignore or minimize the differences that are so important and abiding that makes us who we are: Americans. Instead, embrace and reaffirm what we share as Americans across our differences. First Amendment principles can and do work to advance the best interest of education and the nation, but only when they are understood and applied by a citizenry that is committed to advancing a common vision of the common good.

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