Ancillary: Limits on scholastic journalism

Limits on Scholastic Journalism

Tinker v. Des Moines Independent School District (1969)

The Tinker case stemmed from several students wearing black armbands to protest the Vietnam War.  The school suspended the students for violating the dress code, which had recently been changed to keep students from wearing armbands in protest.  The Supreme Court ruled that students could legally protest the war under the First Amendment by wearing the armbands.  Justice Abe Fortas stated in Tinker, “students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  The Court denoted one major limitation to students’ First Amendment rights: teachers and administrators can censor any speech that could cause a serious disruption at school or invades the rights of others.

Bethel v. Fraser (1986)

Matthew Fraser delivered a speech for a friend who was running for student government.  The speech was laced with innuendo and double meanings.  Fraser was suspended, and he subsequently sued the school for having violated his First Amendment right to free speech.  However, the Supreme Court decided against Fraser, ruling that, while students can advocate political and other controversial viewpoints, the school maintains the ability to censor vulgar or indecent speech.  This case created the first of several exceptions to the Tinker decision: Under Bethel v. Fraser, vulgar or offensive speech inside the school building can be censored.

Hazelwood v. Kuhlmeier (1988)

The Hazelwood case began at Hazelwood East High School in Missouri.  The student newspaper staff wrote articles about teen pregnancy and divorce, and the school’s principal decided to eliminate them from the publication.  The students sued, but they lost their case at the Supreme Court level.  The Court’s decision caused Knight (1988) to write that schools had regained control of publications created as part of a curriculum.  Knight went on to explain that individual students’ rights still fell under the Tinker precedent, but that any and all “school-sponsored or even school-related” speech could now be regulated by the school.  This decision created a second exception to the Tinker holding: in the words of Justice Brennan, “legitimate pedagogical concerns” can outweigh students’ First Amendment rights if the speech is school sponsored. Troublingly, several researchers pointed to the Hazelwood case’s wording, which invoked the schoolhouse gate passage in Tinker to defend its decision against student First Amendment rights.

Thus, after the monumental Tinker decision affirmed students’ First Amendment rights in school, the next two decades saw the Supreme Court use the wording of the Tinker decision to justify two further exceptions to student free expression rights.  From 1988 until 2007, students could express themselves under the First Amendment, provided the speech was not seriously disruptive or invasive (Tinker), vulgar, (Bethel) or school-sponsored (Hazelwood).

Key note for teachers and students:  Administrators (and courts) are not required to censor any type of unprotected student speech—they simply have the ability to.  Just because they can censor a type of speech (including the type you’ll see in the Morse case) does not mean they have to.