Overview Edit

The extent the First Amendment right of free speech applies to children has been addressed by the U.S. Supreme Court in a number of important cases.

In a case upholding high school students’ right to wear black arm bands to protest the war in Vietnam, the Supreme Court held that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[1] They do, however, shed them to some extent. The Supreme Court has upheld the suspension of a student for using a sexual metaphor in a speech nominating another student for a student office.[2] It has upheld censorship of a student newspaper produced as part of the school curriculum.[3] (Lower courts have indicated that non-school-sponsored student writings may not be censored.[4])

A plurality of the justices found that a school board must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” but that it may not remove school library books in order to deny access to ideas with which it disagrees for political or religious reasons.[5] The Supreme Court has also held that Congress may not prohibit people 17 or younger from making contributions to political candidates and contributions or donations to political parties.[6]

Most recently, in Morse v. Frederick, the Court held that a school could punish a pupil for displaying a banner that read, “BONG HiTS 4 JESUS,” because these words could reasonably be interpreted as “promoting illegal drug use.”[7] The Court indicated that it might have reached a different result if the banner had addressed the issue of “the criminalization of drug use or possession.”[8]

Justice Alito, joined by Justice Kennedy, wrote a concurring opinion stating that they had joined the majority opinion “on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”[9]

As Morse v. Frederick was a 5-to-4 decision, Justices Alito’s and Kennedy’s votes were necessary for a majority and therefore should be read as limiting the majority opinion with respect to future cases.

References Edit

  1. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506 (1969).
  2. Bethel School Dist. No. 463 v. Fraser, 478 U.S. 675 (1986).
  3. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
  4. E.g., Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988); Romano v. Harrington, 725 F. Supp. 687 (E.D.N.Y. 1989).
  5. Board of Educ., Island Trees School Dist. v. Pico, 457 U.S. 853, 864 (1982). The Court noted that “nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools.” Id. at 871.
  6. McConnell v. Federal Election Comm'n, 540 U.S. 93, 231-32 (2003).
  7. 127 S.Ct. 2618, 2624 (2007).
  8. Id. at 2625.
  9. Id. at 2636.

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