are students protected by the first amendment essay

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Rights of Students

Philip A. Dynia

The first major Supreme Court decision protecting the First Amendment rights of children in a public elementary school was West Virginia State Board of Education v. Barnette (1943). The Supreme Court overturned the state's law requiring all public school students to salute the flag and recite the Pledge of Allegiance.In this photo, a 6th grade class in P.S. 116 in Manhattan salutes the flag in 1957. (AP Photo, used with permission from the Associated Press)

Public school students enjoy First Amendment protection depending on the type of expression and their age. The Supreme Court clarified in  Tinker v. Des Moines Independent Community School District  (1969)  that public students do not “shed” their First Amendment rights “at the schoolhouse gate.”

Constitutional provisions safeguarding individual rights place limits on the government and its agents, but not on private institutions or individuals. Thus, to speak of the First Amendment rights of students is to speak of students in public elementary, secondary, and higher education institutions. Private schools are not government actors and thus there is no state action trigger.

Another important distinction that has emerged from Supreme Court decisions is the difference between students in public elementary and secondary schools and those in public colleges and universities. The latter group of students, presumably more mature, do not present the kind of disciplinary problems that educators encounter in grade school and high school, so the courts have deemed it reasonable to treat the two groups differently.

The court has protected K-12 students

The first major Supreme Court decision protecting the First Amendment rights of children in a public elementary school was  West Virginia State Board of Education v. Barnette   (1943) . A group of  Jehovah’s Witnesses  challenged the state’s law requiring all public school students to salute the flag and recite the  Pledge of Allegiance . Students who did not participate faced expulsion.

The Jehovah’s Witnesses argued that saluting the flag was incompatible with their religious beliefs barring the worship of idols or graven images and thus constituted a violation of their free exercise of religion and freedom of speech rights. The Supreme Court agreed, 6-3. Its decision overturned an earlier case,  Minersville School District v. Gobitis  (1940) , in which the court had rejected a challenge by Jehovah’s Witnesses to a similar Pennsylvania law.

In  Barnette , the court relied primarily on the free-speech clause rather than the free-exercise clause.  Justice Robert H. Jackson wrote the court’s opinion, widely considered one of the most eloquent expressions by any American jurist on the importance of freedom of speech in the U.S. system of government. Treating the flag salute as a form of speech, Jackson argued that the government cannot compel citizens to express belief without violating the First Amendment. “If there is any fixed star in our constitutional constellation,” Jackson concluded, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

In the early 1960s, the court in several cases — most notably  Engel v. Vitale  (1962)  and  Abington School District v. Schempp  (1963)  — overturned state laws mandating prayer or Bible reading in public schools. Later in that same decade, the Court in  Epperson v. Arkansas  (1968)  found an Arkansas law banning the teaching of  evolution  in public schools to be an unconstitutional violation of the  establishment clause .

In  Tinker , resulting in the court’s most important student speech decision, authorities had banned students from wearing black armbands after learning that some of them planned to do so as a means of protesting the deaths caused by the  Vietnam War . Other symbols, including the Iron Cross, were allowed. In a 7-2 vote, the court found a violation of the First Amendment speech rights of students and  teachers  because school officials had failed to show that the student expression caused a  substantial disruption  of school activities or invaded the rights of others.

In later cases —  Bethel School District No. 403 v. Fraser  (1986)  and  Hazelwood School District v. Kuhlmeier  (1988)  and  Morse v. Frederick  (2007)  — the court rejected student claims by stressing the important role of public schools in inculcating values and promoting civic virtues. The court instead gave school officials considerable leeway to regulate with respect to curricular matters or where student expression takes place in a school-sponsored setting, such as a school newspaper ( Kuhlmeier ) or an assembly ( Fraser ). Years later, in  Morse v. Frederick  (2007) , the Court created another exception to  Tinker , ruling that public school officials can prohibit student speech that officials reasonably believe promotes illegal drug use.

College students receive different levels of protection

The different level of speech protection for students in institutions of higher education, who are generally 18 years or older and thus legally adults, is evident from several cases.  Students on college and university campuses enjoy more academic freedom than secondary school students.

In  Healy v. James  (1972) , the court found a First Amendment violation when a Connecticut public college refused to recognize a radical student group as an official student organization, commenting that “[t]he college classroom with its surrounding environs is peculiarly the ‘ marketplace of ideas .’”

In  Papish v. Board of Curators of the University of Missouri  (1973) , a graduate journalism student was expelled for distributing on campus an “underground” newspaper containing material that the university considered “indecent.” The court relied on  Healy for its conclusion that “the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in the name alone of ‘conventions of decency.’ ”

However, in recent years, courts have applied principles and standards from K-12 cases to college and university students.  For example, in  Hosty v. Carter  (7 th  Cir. 2005) , the 7 th  U.S. Circuit Court of Appeals ruled that college officials did not violate the First Amendment and applied reasoning from the high school  Hazelwood  decision.   More recent lower court decisions also have applied the  Hazelwood  standard in cases involving curricular disputes, professionalism concerns and even the online speech of college and university students. 

Students in private universities — which are not subject to the requirements of the First Amendment — may rely on state laws to ensure certain basic freedoms. For example, many state cases have established that school policies, student handbooks and other relevant documents represent a contract between the college or university and the student. Schools that promise to respect and foster academic freedom, open expression and freedom of conscience on their campus must deliver the rights they promise.

Students and social media

More recently, courts have examined cases involving student speech on social media. In 2021, the U.S. Supreme Court ruled that a school could not discipline a cheerleader who had posted on Snapchat a vulgar expression about not making the varsity squad. The court said in  Mahanoy Area School District v. B.L.   that the school’s regulatory interest was lessened in regulating the speech of students off-campus and on social media and that the cheerleader’s comment on Snapchat did not substantially disrupt school operations.

This article was originally published in 2009 and updated by  David L. Hudson Jr. and Deborah Fisher as recently as 2023. Philip A. Dynia is an Associate Professor in the Political Science Department of Loyola University New Orleans. He teaches constitutional law and judicial process as well as specialized courses on the Bill of Rights and the First Amendment.

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The First Amendment in Schools

The first amendment protects both students and teachers in schools..

NCAC presents the following collection of materials on the topic of censorship in schools for the use of students, educators, and parents everywhere. This information is not intended as legal advice. If you face a censorship controversy, the resources below can offer guidance. If you need additional assistance, please contact us . We will keep your information confidential until given permission to do otherwise.

NOTE: Guide for Student Protesters available here

Table of Contents

Introduction: Free Speech, Public Education, and Democracy

The First Amendment and Public Schools A. The First Amendment B. The Public Schools 1. School Publications: Student Newspapers and Yearbooks 2. Off-Campus Publications 3. Hair, Dress, and Appearance 4. Gang Symbols and Insignia 5. Off-Campus Speech

Censorship A. Understanding Censorship B. Distinguishing Censorship from Selection C. Consequences of Censorship

How Big a Problem Is Censorship? A. The Numbers B. What Kind of Material Is Attacked? C. What Does “Age Appropriate” Mean? D. Who Gets Censored?

Roles and Responsibilities A. School Officials, Boards and State Mandates B. Principles Governing Selection and Retention of Materials in Schools C. Complaint Procedures

Censorship Policies National Education Association (NEA) The National Council of Teachers of English and the International Reading Association (NCTE/IRA) Association for Supervision and Curriculum Development (ASCD) American Library Association (ALA) National Association of Elementary School Principals (NAESP) National Coalition Against Censorship (NCAC)

Introduction: Free Speech, Public Education, and Democracy

Purpose of the Resource Guide: The First Amendment safeguards the rights of every American to speak and think freely. Those rights are central to the educational process and are equally important to educators and students.

For teachers and administrators: The First Amendment protects teachers when they exercise their judgment in accordance with professional standards, making it possible for them to create learning environments that effectively help young people acquire the knowledge and skills needed to become productive, self-sufficient, and contributing members of society.

For students: The First Amendment protects students’ ability to think critically and learn how to investigate a wide range of ideas. Students have the right to express their beliefs, just like any other citizen. Protecting students’ rights to read, inquire and express themselves is critical to educating informed, engaged citizens.

This guide describes in practical terms what the right to freedom of expression means for students, teachers and administrators in public schools.

Free Speech, Public Education, and Democracy: Our founders considered public schools to be one of the vital institutions of American democracy. But they also knew that education involves more than reading, writing, and arithmetic. Education in a democratic society requires developing citizens who can adapt to changing times, decide important social issues, and effectively judge the performance of public officials. In fulfilling their responsibilities, public schools must educate students on core American values such as fairness, equality, justice, respect for others, and the right to dissent.

Rapid social, political, and technological changes have escalated controversy over what and how schools should teach. References to sexuality, profane language, descriptions of violence and other potentially controversial material have raised questions for generations of parents and educators. Addressing those questions is even more complicated now, when most school communities are made up of individuals with differing backgrounds, cultural traditions, religions, and often languages. With students and parents bringing a range of expectations and needs to the classroom, educators are challenged to balance the educational needs of an entire student body while maintaining respect for the individual rights of each member of the school community.

The First Amendment can help resolve this tension. It defines certain critical rights and responsibilities of participants in the educational process. It both protects the freedom of speech, thought, and inquiry, and requires respect for the right of others to do the same. It requires schools to resort to “ more speech not enforced silence ” in seeking to resolve our differences.

The First Amendment and Public Schools

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. -First Amendment of the United States Constitution ratified December 15, 1791

A. The First Amendment

The first provision of the Bill of Rights establishes the rights essential to a democratic society and most cherished by Americans: the right to speak and worship freely, the right to assemble and to petition the government, and the right to a free press. Although most countries purport to guarantee freedom of expression, few provide the level of protection for free speech that the First Amendment guarantees.

The potential for tyranny by the state and abuse of government authority particularly worried framers of the Bill of Rights. Thus, the language of the First Amendment begins by prohibiting certain government conduct –i.e., “Congress shall make no law respecting….” Like most of the Constitution, these limitations control only what the government may do, and have no effect on private individuals or businesses. Although the Bill of Rights originally limited only the power of the federal government, the Fourteenth Amendment extended the limits imposed by most of the Bill of Rights to state and local governments as well. Since public schools and public libraries are part of state and local government, they must follow the First Amendment as well as many other provisions of the Constitution. However, as this manual will make clear, the First Amendment applies somewhat differently to schools than it does to many other public institutions.

B. The Public Schools

Public schools are institutions which in some respects most embody the goals of the First Amendment: to create informed citizenry capable of self-governance. As many commentators have observed, a democracy relies on an informed and critical electorate to prosper. As Noah Webster observed in 1785: “It is scarcely possible to reduce an enlightened people to civil or ecclesiastical tyranny.” And on the eve of the Constitutional Convention in 1787, Benjamin Rush stated that “to conform the principles, morals, and manners of our citizens to our republican form of government, it is absolutely necessary that knowledge of every kind should be disseminated through every part of the United States.” Not surprisingly, universal access to free public education has long been viewed as essential to democratic ideals. 

America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. Schools, however, can sometimes limit students’ right to free speech and expression when necessary to achieve legitimate educational goals. As the Supreme Court put it in Mahanoy Area School District v. B. L. (2021):

Schools have many responsibilities: They must teach basic and advanced skills and information; they must do so for students of different backgrounds and abilities; they must  teach students to work independently and in groups; and they must provide a safe environment that promotes learning. 

Given these multiple responsibilities, school officials have wider discretion than other state actors in regulating certain types of speech. For example, they can forbid profane speech on campus (according to Bethel School District v. Fraser (1986 )) and can punish students for advocating illegal drug use (as in Morse v. Frederick (2007)).  They can also censor student speech in school publications, such as school newspapers and yearbooks, see Hazelwood School District v. Kuhlmeier (1988). More importantly, schools can censor student speech which is likely to substantially disrupt school operations ( Tinker v. Des Moines Independent Community School District (1969)). Therefore, speech is not quite as free inside schools as it is outside. 

However, the limits on student speech are quite narrow, and in general, students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” (Tinker v. Des Moines ) See below for examples of how the First Amendment applies to schools in specific ways .

         1. School Publications: School Newspapers and Yearbooks

The Supreme Court has ruled that student journalists have very limited rights when they write for school-sponsored publications such as school newspapers and yearbooks. The school can censor articles for many reasons, including because school officials think that the subject is inappropriate. Some courts have even said that schools can censor editorials because school officials disagree with the views expressed in them.

However, several states have laws which give greater protection to student journalists. A list of those states and links to descriptions of their legislation can be found here .

          2. Off-campus Publications: “Underground’ Newspapers, Websites, Etc.

Concerns about censorship in “official” school papers may prompt students to publish material produced outside of school, or on websites maintained privately without use of school facilities. Some schools have attempted to censor these publications and suppress off-campus speech they find offensive, disturbing, or unflattering. However, courts have been willing to uphold school censorship of off-campus speech only in unusual circumstances in which the speech has a very high likelihood of substantially disrupting school (such as by publishing answers to tests) or harming particular persons (such as by harassing or threatening them). 

Unlike student speech in school, student speech off campus cannot be punished just because it includes profanity, or advocates illegal drug use, or for any reason other than it is very likely to substantially disrupt school. In particular, schools have limited ability to punish or censor off-campus speech about politics or religion. If an independent student publication is distributed on campus, school officials have a bit more power to confiscate or ban it, but only if there is a risk that it will cause substantial disruption of the school.

Student rights can often be limited if students use school resources (such as school computers or the school’s internet service) to create or distribute publications. Students can help avoid conflict with school officials by ensuring their unofficial publications are produced and maintained separately from any school course and without school materials or teacher assistance.

Also, it is important for students who use their school’s technology to know their school’s “Acceptable Use Policy” (AUP). An AUP, which is often found in district guidelines or in a student handbook, sets out the rules and regulations governing student use of school computer networks. Some sample acceptable use policies can be found here , but your school’s policy might be different in some ways.

          3. Hair , Dress, and Appearance  

Since the Tinker case in 1969, students, school administrators, and courts have struggled with the boundaries and limits of student dress and grooming requirements. Beginning in the early 1970s, the courts were inundated with cases that confronted the issue, and have found few clear answers. The circuit courts remain split over the control school administrators can exercise with respect to student dress and grooming. The issue often is complicated by gender and guidelines that reinforce rigid binaries. In one case, a school disciplined a boy for wearing an earring, although earrings are permitted under the dress code for girls. Other examples are hair length restrictions for boys but not girls, or dress requirements designed to enforce notions of modesty for girls but not boys. Some public schools have required uniforms, but this has hardly solved the problem, as strict dress codes of this sort are often challenged. In contrast, gender-neutral guidelines about appropriate dress rarely result in challenges.

          4. Gang Symbols and Insignia 

Since gang members often identify themselves through clothes and insignia, principals have often turned to dress codes in an effort to discourage gang membership and activities. Courts have generally held that these codes are valid.

          5. Off-Campus Speech

In recent years, there s been an increasing number of cases involving off-campus student speech which has effects on-campus. Often, that speech takes place on social media. Schools cannot punish students for profane speech that takes place off-campus (except during a field trip, which courts consider part of the school). Nor can they punish students for off-campus speech which advocates illegal drug use. However, schools can sometimes punish students for off-campus speech which has a strong chance of coming on campus and disrupting school, such as racist speech when the school has a history of racial conflict. And, schools can of course punish students for off-campus speech that harasses students or school employees, or which threatens violence against the school. 

A. Understanding Censorship

Censorship is the suppression of speech or other expression that the censor (a person or institution with the power to suppress speech) does not like.

Parents and community groups often try to remove school materials that discuss sexuality, religion, race, or ethnicity–whether directly or indirectly. For example, some people object to the teaching of Darwin’s theory of evolution in science classes because it conflicts with their own religious views. Others think schools should not allow discussion about sexual orientation or gender identities, and other people call for eliminating The Adventures of Huckleberry Finn from the English curriculum because they think it is racist.

As these examples show, demands for censorship originate across the entire spectrum of religious, ideological, and political opinion.

When people ask schools to censor materials, schools must balance their First Amendment duties against other concerns, such as maintaining the integrity of the educational program, meeting state education requirements, respecting the judgments of professional staff, and addressing deeply held beliefs in students and members of the community. In dealing with challenges to materials, educators are on the strongest ground if they are mindful of two fundamental principles that the Supreme Court has repeatedly recognized: 1) schools have broad power to decide what and how to teach, as long as their decisions are based on sound educational principles and are aimed at improving student learning; and 2) the decisions that are most vulnerable to legal challenge are those that are motivated by hostility to an unpopular or controversial idea, or by the desire to force acceptance of a particular viewpoint.

Pursuant to these principles, when someone claims in a lawsuit that a school’s actions violate the First Amendment, courts generally defer to the professional judgments of educators.  That means that courts will often uphold a decision to remove a book or to discipline a teacher, if the decision serves legitimate educational objectives, including administrative efficiency. However, it is equally true that schools which reject demands for censorship are on equally strong or stronger grounds. As the Supreme Court stated in its 2021 Mahanoy decision, schools have a strong interest in protecting unpopular expression, in exposing students to a wide range of views, and in giving students the opportunity to discuss those views.

Therefore, it is extremely unlikely that a school official who relied on these principles and refused to accede to pressures to censor something with educational value would ever be ordered by a court of law to do so.

B. Distinguishing Censorship from Selection

Schools make decisions all the time about which books and materials to include in or exclude from the curriculum. Hence, they are not violating the First Amendment every time they cross a book off a reading list. However, they could be acting unconstitutionally if they decide to remove a book solely because of hostility to the ideas it contains. 

For example, administrators and faculty might agree to take discussion of evolution out of the second grade curriculum because the students lack sufficient background to understand it, and decide to introduce it in the fourth grade instead. As long as they are not motivated by hostility to the idea of teaching about evolution, this would not ordinarily be problematic. The choice to include the material in the fourth grade curriculum tends to demonstrate this was a pedagogical judgment, not an act of censorship.

However, not every situation is that simple. For example, objections to material dealing with sexuality or sexual orientation commonly surface in elementary schools and middle schools when critics claim that such material is not “age appropriate” for those students. Often, it becomes clear that their concern is not that students will not understand the material, but that they simply do not want the students to have access to that type of information. If professional educators can show a legitimate pedagogical rationale for maintaining such material in the curriculum, it is unlikely that an effort to remove it will be successful.

Moreover, while individual parents have considerable control over their own child’s education and can request their child be given a different book, they have no right to impose their preferences on other students and their families. 

C. Consequences of Censorship

Censorship based on individual sensitivities and concerns restricts the world of knowledge available to students. Based on personal views, some parents wish to eliminate material depicting violence, others object to references to sexuality, others to speech about racial issues or images that offend them. Some parents oppose having their children exposed to fiction that doesn’t have a happy ending, teach a moral lesson, or provide positive role models. If these and other individual preferences were legitimate criteria for censoring materials used in school, the curriculum would narrow to including only the least controversial and probably least relevant and interesting material. It would hardly address students’ real concerns, satisfy their curiosity, or prepare them for life.

Censorship also harms teachers. By limiting resources and flexibility, censorship hampers a teacher’s ability to explore all possible avenues to motivate and “reach” students. By curtailing ideas that can be discussed in class, censorship takes creativity and vitality out of the art of teaching. Instruction is reduced to bland, formulaic, pre-approved exercises carried out in an environment that discourages the give-and-take that can spark a student’s enthusiasm for learning. To maintain spontaneity in the classroom setting, teachers need latitude to respond to unanticipated questions and discussion, and the freedom to draw on their professional judgment and expertise, without fear of consequences if someone objects, disagrees, or takes offense.

School censorship is particularly harmful because it prevents young people with inquiring minds from exploring the world, seeking truth and reason, stretching their intellectual capacities, and becoming critical thinkers. When the classroom environment is not open and inviting, honest exchange of views is replaced by guarded discourse, and teachers lose the ability to reach and guide their students effectively.

How Big a Problem Is Censorship?

A. The Numbers

The American Library Association (ALA), which tracks and reports censorship incidents, reports that there are hundreds of challenges in schools and public libraries every year. ALA estimates that roughly four or five times as many go unreported.  

B. What Kind of Material Is Attacked?

ALA offers an instructive analysis of the motivation behind most censorship incidents:

The term censor often evokes the mental picture of an irrational, belligerent individual. Such a picture, however, is misleading. In most cases, the one to bring a complaint to the library is a concerned parent or a citizen sincerely interested in the future well-being of the community. Although complainants may not have a broad knowledge of literature or of the principles of freedom of expression, their motives in questioning a book or other library material are seldom unusual. Any number of reasons are given for recommending that certain material be removed from the library. Complainants may believe that the materials will corrupt children and adolescents, offend the sensitive or unwary reader, or undermine basic values and beliefs. Sometimes, because of these reasons, they may argue that the materials are of no interest or value to the community.

While demands for censorship can come from almost anyone and involve any topic or form of expression, most incidents involve concerns about sexual content–specifically LGBTQ+ content–religion, profanity, or racial slurs. Many incidents involve only one complaint, but nonetheless trigger a review process that can become contentious. Parents who support free expression do not step forward to participate in public discussions as frequently as those seeking to remove materials, leaving school officials and teachers relatively isolated. It is then their task to assess the pedagogical value of the materials carefully. If they give in to viewpoint-based demands, they can undermine educational objectives, as well as encourage more challenges.

C. What Does “Age Appropriate” Mean?

One of the most common demands for censorship involves the claim that certain school materials are not “age appropriate.” 

Educators generally use the term “age appropriate” when they mean the point at which children have sufficient life experience and cognitive skills to comprehend certain material. For example, educators may decide that detailed scientific information about human reproduction may not be age-appropriate for six-year-olds but would be understood by 12-year-olds who have been introduced to basic biology.

However, when censors complain that a book is not “appropriate,” they often mean that students shouldn’t be exposed to the material for reasons of personal ideology or belief. The objection usually occurs when the material concerns sexuality and often reflects a fear that exposure to it will undermine moral or religious values. Acceding to the pressure to censor in this situation can be tantamount to endorsing one moral or religious view over another.

Responding to questions about age appropriateness, the National Council of Teachers of English noted that “materials should be suited to maturity level of the students,” and that it is important to “weigh the value of the material as a whole, particularly its relevance to educational objectives, against the likelihood of a negative impact on the students… That likelihood is lessened by the exposure the typical student has had to the controversial subject.”

D. Who Gets Censored?

The books targeted by censors include both popular and classic titles, affecting choices made by almost every age group. The ALA’s list of most challenged books in 2020 includes:

• George by Alex Gino
• Stamped: Racism, Antiracism, and You by Ibram X. Kendi and Jason Reynolds
• All American Boys by Jason Reynolds and Brendan Kiely
• Speak by Laurie Halse Anderson
• The Absolutely True Diary of a Part-Time Indian by Sherman Alexie
• Something Happened in Our Town: A Child’s Story About Racial Injustice by Marianne Celano, Marietta Collins, and Ann Hazzard, illustrated by Jennifer Zivoin
• To Kill a Mockingbird by Harper Lee
• Of Mice and Men by John Steinbeck
• The Bluest Eye by Toni Morrison
• The Hate U Give by Angie Thomas

Some of these titles appear on the ALA’s list of most challenged works year after year.  For example, The Absolutely True Diary of a Part-Time Indian has made the list eight times since 2010; George has been on the list every year since 2016, and has been the most challenged book each of the last three years. To Kill a Mockingbird , Of Mice and Men, and The Bluest Eye have appeared periodically on the list for two decades or more.

E. The Chilling Effect

Censorship often leads directly to self-censorship. It occurs every day. Sometimes it’s obvious even if no one uses the “c” word. Sometimes it is more insidious (and less justified)–for example, when a teacher decides not to use a particular story or book or a librarian doesn’t order a particular magazine because of fears about possible complaints. It is impossible to quantify the damage that self-censorship does to education. But it is common enough to have its own name: ”the chilling effect.” This is the idea that restricting access to information based on particular viewpoints will discourage the use of potentially controversial (or even complicated) material in the future, that teachers, for example, will avoid teaching a book just because they don’t want to risk the disruption a formal complaint would cause, even if they truly believe that book would be an excellent educational choice.

Roles and Responsibilities: Promoting First Amendment Values at School

A. School Officials, Boards, and State Mandates

The school board’s role is to define an educational philosophy that serves the needs of all its students and reflects community goals. In this process, most districts see a role for parents and other community members. Educational advisory boards can also assist educators in discerning the needs and perspectives of the community. Open school board meetings can keep the public informed about the school district’s educational philosophy and goals, encourage comments, questions and participation, and increase community support for the schools. Although public debate about the educational system provides opportunities for community input and can assist educators in developing materials to meet students’ needs and concerns, actual curriculum development and selection are tasks uniquely suited to the skills and training of professional educators. Hence, school boards should defer to the judgment of review committees composed of educators when making decisions about curricular materials.

While curriculum development relies heavily on the professional expertise of trained educators, it is also controlled by state education law and policy. Educators’ choices are influenced by factors such as competency standards, graduation requirements, standardized testing, and other educational decisions made at the state level.

B. Principles Governing Selection and Retention of Materials in Schools

School officials have the constitutional duty to ensure that curriculum development and selection decisions are made without attempting to advance any particular political or religious viewpoint. School districts otherwise have broad discretion when selecting classroom instructional materials.

In contrast, policies governing school libraries and classroom resource materials place a priority on including a wider range of materials. The ALA Library Bill of Rights (1948) recognizes the library’s essential role in providing resources to serve the “interest, information, and enlightenment of all people of the community.” With minor modifications, these principles also apply in the school setting.

The considerations specifically relevant to school libraries are identified by National School Board Association guidelines:

• To provide materials that will enrich and support the school’s curricula;
• To provide materials that will stimulate knowledge, growth, literary appreciation, aesthetic values, ethical standards, and leisure-time reading;
• To provide information to help students make intelligent judgments;
• To provide information on opposing sides of controversial issues so that students may develop the practice of critical reading and thinking; and
• To provide materials representative of the many religious, ethnic, and cultural groups that have contributed to the American heritage.

The ALA believes that library materials “should not be proscribed or removed because of partisan or doctrinal disapproval.”

C. Complaint Procedures

All school districts should adopt formal policies and procedures for responding to complaints about materials. Formal policies clarify how the complaint process works; help faculty, staff, and administration fulfill their legal obligations; let parents and students know what criteria are used for removing materials and how they are applied; ensure that all voices are heard and considered; and protect the academic freedom of teachers.

When materials are challenged, schools with a well-articulated process for handling complaints are more likely to resist viewpoint-based censorship pressures than districts without one. Having a policy in place, and following it scrupulously, ensures that complainants will receive due process, and that challenged materials will be judged on their educational merits rather than personal opinions. It is important for teachers and administrators to be familiar with these policies and understand their importance. Armed with this knowledge, school officials are less likely to submit to pressure or react with unilateral decisions to remove books.

The most effective complaint procedures provide that:

• Complaints must be made in writing.
• Complainants should identify themselves both by name/address and by their interest in the material (i.e. , as a parent, student, religious leader, etc.).
• Complainants must have read/seen the entire work objected to.
• The complaint must be specific about the reasons for the objection.
• Complaints should request a specific remedy (i.e., an alternative assignment for a student, or removal/exclusion affecting the entire school community). 
• Complaints, standing alone, will not be considered grounds for disciplining teachers or librarians.
• Complaints are adjudicated by a diverse committee of stakeholders, including teachers, administrators, parents, and students.
• Challenged materials remain in the curriculum/library until the challenge is adjudicated and all appeals are completed.

A list of model policies is available here .

It is advisable for policies to contain a statement supporting intellectual and academic freedom, and an explanation of the importance of giving students access to a wide variety of material and information, some of which may be considered controversial. The policy should also specify that viewpoint-based concerns – disagreement with a specific idea or message, and personal objections to materials on religious, political, or social grounds – do not justify removal of a book or other material. Such concerns may, however, justify a parent’s request that his or her child be assigned alternate material. These principles, if uniformly and consistently implemented, protect students’ right to learn. They also make it possible for educators to exercise their professional judgment, and help insulate them and the school district from legal challenge and community pressure.

In order to prepare for challenges, educators should do all of the following:

• School administrators and teachers should work together to develop an understanding about how they will respond if material is challenged, recognizing that it is impossible to predict what may be challenged.
• Educators should have a rationale for the materials they use, especially when they think some of it is potentially controversial.
• In approaching material that may be controversial, keep parents advised about what material students are using and why it has been selected.
• Encourage parents with questions about curricular materials to address them to their child’s teacher, and encourage teachers to be willing and available to discuss concerns with parents.
• Schedule regular meetings for parents. In one innovative program in South Carolina, librarian Pat Scales invited parents to the library once a month, without students, to discuss contemporary young adult books that their children might be reading, to understand how the books helped their children grow intellectually and emotionally, and to encourage parents to use the discussion of books to spark conversation with their children. As a result, she never had a censorship problem, and she became a resource for parents seeking books to help their children address troublesome issues. (Pat Scales’ book, Teaching Banned Books (ALA, 2001) describes this program in detail.)
• Involve members of the community in any debate over challenged materials. Broadening the discussion usually reveals that only a small number of people object to the same book at the same time.
• Support the value of intellectual and academic freedom. Conscientious teachers who are caught in a censorship dispute deserve support from their colleagues and the community. Otherwise, teachers will stick to the tried and true or the bland and unobjectionable.

For more advice on how teachers can safeguard their selection of instructional materials from successful challenges, see NCAC resources for teachers and administrators here .

Censorship Policies

Major Educational Organizations Take a Stand for the First Amendment

Many national and international organizations concerned with elementary and secondary education have established guidelines on censorship issues. While each organization addresses censorship a little differently, each is committed to free speech and recognizes the dangers and hardships imposed by censorship. The organizations couple their concern for free speech with a concern for balancing the rights of students, teachers, and parents. Many place heavy emphasis on the importance of establishing policies for selecting classroom materials and procedures for addressing complaints. The following summarizes the censorship and material selection policies adopted by leading educational organizations.

National Education Association (NEA)

 the national council of teachers of english and the international reading association (ncte/ira).

An 80,000-member organization devoted to improving the teaching and learning of English and the language arts, the NCTE offers support, advice, and resources to teachers and schools faced with challenges to teaching materials or methods. The NCTE has developed a Statement on Censorship and Professional Guidelines recognizing that English and language arts teachers face daily decisions about teaching materials and methods.

Founded in 1974, NCAC is an alliance of over 50 national non-profit organizations–including literary, artistic, religious, educational, professional, labor, and civil liberties group–united in their support of freedom of thought, inquiry, and expression. NCAC works with teachers, educators, writers, artists, and others around the country dealing with censorship debates in their own communities; it educates its members and the public at large about the dangers of censorship and how to oppose them; and it advances policies that promote and protect freedom of expression and democratic values. For specific advice on strengthening your book selection procedures and resisting censorship, submit a Censorship Report to NCAC at  ncac.org/report-censorship .

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Freedom of Speech? A Lesson on Understanding the Protections and Limits of the First Amendment

By Staci Garber

• Sept. 12, 2018

This lesson plan was created in partnership with the National Constitution Center in advance of Constitution Day on Sept. 17. For information about a related cross-classroom “Constitutional Exchange,” see The Lauder Project .

While Americans generally agree that the First Amendment to the Constitution protects the freedom of speech, there are disagreements over when, where, how and if speech should be ever limited or restricted.

This lesson plan encourages students to examine their own assumptions about what freedom of speech really means, as well as to deepen their understanding of the current accepted interpretation of speech rights under the First Amendment. The lesson should reinforce the robustness of the First Amendment protections of speech.

While teaching, you may want to use all or part of this related Student Opinion question, which asks: Why is freedom of speech an important right? When, if ever, can it be limited?

Using this handout (PDF), students will read the First Amendment provision that protects the freedom of speech and then interpret its meaning using 10 hypothetical situations. For example, here are two situations in the handout: a person burns an American flag in protest of government policies , and a public school student starts a website for students to say hateful things about other students .

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Our First Amendment Rights Don’t Disappear at the Schoolhouse Gates

Our First Amendment rights do not disappear at the schoolhouse gates. Students of all ages can, and have, exercised their right to free speech, assembly, religion and expression since America’s founding.

At the same time, schools can place reasonable restrictions on how students express themselves if their speech would be disruptive to the school environment or infringe on the rights of others. Importantly, students under 18 enrolled in K-12 have different protections than adult-age college or university students. Whether schools can punish students for speaking out depends on when, where, and how someone expresses themselves.

That’s why it’s important that everyone — including students and allies — learn about students’ rights.

To help people of all ages, especially young people, understand our First Amendment rights, I worked with the ACLU to create a comic series that showcases how students can use their voice in school.

Emerson Sykes, a senior staff attorney with the ACLU Speech, Privacy and Technology Project, who litigated some of the cases featured in the comic series, explained to me why there is a fundamental difference between First Amendment rights in K-12 and in higher education.

“A K-12 education focuses on age-appropriate education — passing down the tools, skills and information that the next generation needs to progress. But it's not necessarily about pushing the boundaries of human understanding and knowledge like in higher education,” said Sykes.

To ensure students can make informed choices, Sykes and I focused the third and final comic in this series on students’ rights at both education levels. Sykes told me that he hopes that, armed with information, students can make informed choices about what risk they may take when standing up for causes they believe in.

“Most people want to avoid police interactions, but some people intend to protest unlawfully and are prepared to be arrested, hoping that being detained will help raise awareness of their cause. That kind of civil disobedience has been around for a long time,” said Sykes. “But there are many types of activism, and knowing where the lines are between advocacy protected by the First Amendment and breaking the law helps folks focus their activism.”

The comic series helps students to make sense of what their rights are, and provides real world examples of free speech in school. The first comic focused on students in K-12 and told the story of Anthony Crawford, a high-school educator in Oklahoma who challenged HB 1775, a classroom censorship law that sought to limit conversations about race, racism, sex or gender in the classroom. In June, a district court in Oklahoma blocked some of HB 1775’s provisions while the lawsuit remains pending, and provided students and educators the chance to exercise their right to free speech in school.

The second comic showcased the courage students in the University of Florida’s Students for Justice in Palestine advocacy group showed when they fought state attempts to deactivate their group for allegedly providing “material support of terrorism.” The comic reminds students that, while standing up for our First Amendment rights can be tough, unlawful attempts to censor political speech — or any speech — has no place in our schools.

Today, as students, educators and communities prepare for a new school year, I hope this comic series serves as a guide to our rights, and reminds us that our First Amendment rights don’t disappear just because we’re in school.

"I hope this comic series serves as a guide to our rights, and reminds us that our First Amendment rights don’t disappear just because we’re in school."

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Academic freedom and the first amendment (2007), presentation to the aaup summer institute.

By Rachel Levinson, AAUP Senior Counsel July 2007 1

Download a .pdf of this document.

As a legal matter, it can be extremely difficult to determine where faculty members’ rights under academic freedom and the First Amendment begin and end. It can also be difficult to explain the distinction between “academic freedom” and “free speech rights under the First Amendment”—two related but analytically distinct legal concepts. Academic freedom rights are not coextensive with First Amendment rights, although courts have recognized a relationship between the two.

The First Amendment generally restricts the right of a public institution—including a public college or university—to regulate expression on all sorts of topics and in all sorts of settings. Academic freedom, on the other hand, addresses rights within the educational contexts of teaching, learning, and research both in and outside the classroom—for individuals at private as well as at public institutions. This outline aims to give an overview of the protections afforded by academic freedom and the First Amendment, as well as some guidance on the areas in which they do not overlap or where courts have been equivocal or undecided on how far their protections extend. 2 Because the First Amendment applies only to governmental actors, this outline focuses primarily on public institutions.  

Sources of Academic Freedom Rights

Academic freedom has a number of sources; the protection it affords in a given circumstance can depend on a variety of factors, including state law, institutional custom and policy, and whether the institution is public or private. The notion of academic freedom was originally given legal recognition and force in a series of post-McCarthy-era Supreme Court opinions that invoked the First Amendment to the U.S. Constitution.

A. First Amendment – Text and Interpretations

1. Text : The text of the First Amendment to the U.S. Constitution, “Congress shall make no law . . . abridging the freedom of speech,” makes no explicit mention of academic freedom. However, many courts that have considered claims of academic freedom – including the U.S. Supreme Court – have concluded that there is a “constitutional right” to academic freedom in at least some instances, arising from their interpretation of the First Amendment. 2. Judicial Origins : During the McCarthy era, a number of employers began to require teachers (and other public employees) to sign statements assert that they were not involved in any subversive groups. In response to these cases, the U.S. Supreme Court began to codify the notion of constitutional academic freedom. a. Adler v. Board of Education , 342 U.S. 485 (1952) (Douglas, J., dissenting). This case involved a New York state statute that essentially banned state employees from belonging to “subversive groups” – groups that advocated the use of violence in order to change the government. Under the statute, public employees were forced to take loyalty oaths stating that they did not belong to subversive groups in order to maintain their employment. While the Supreme Court’s decision upheld the state statute, Justice Douglas’ dissent contains the first mention of academic freedom in a Supreme Court case. Referring to the process by which organizations were found “subversive,” Justice Douglas asserted that “[t]he very threat of such a procedure is certain to raise havoc with academic freedom. . . . A teacher caught in that mesh is almost certain to stand condemned. Fearing condemnation, she will tend to shrink from any association that stirs controversy. In that manner freedom of expression will be stifled.” Douglas said that because the law excluded an entire viewpoint without a showing that the invasion was needed for some state purpose, it impermissibly invaded academic freedom. b. Wieman v. Updegraff , 344 U.S. 183 (1952). Wieman , decided shortly after Adler , involved a state-imposed loyalty oath that required Oklahoma professors to promise that they had never been part of a communist or subversive organization. Professors at one state college refused to take the oath, and an Oklahoma taxpayer sued to block the college from paying their salaries. A concurring opinion by Justices Douglas and Frankfurter was based on First Amendment academic freedom grounds; Justice Frankfurter’s concurrence specifically emphasizes the importance of academic freedom and teaching as a profession uniquely requiring protection under the First Amendment. In Justice Frankfurter’s words:   Such unwarranted inhibition upon the free spirit of teachers affects not only those who . . . are immediately before the Court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers. . . . Teachers must . . . be exemplars of open-mindedness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied to them. They must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma. c. Sweezy v. New Hampshire , 354 U.S. 234 (1957). Sweezy marks a landmark in the Court’s recognition and acceptance of academic freedom, and of academic freedom’s grounding in the Constitution. Sweezy, a professor at the University of New Hampshire, was interrogated by the New Hampshire Attorney General about his suspected affiliations with communism. Sweezy refused to answer a number of questions about his lectures and writings, but did say that he thought Marxism was morally superior to capitalism. The Supreme Court accepted Justice Frankfurter’s reasoning from Wieman and stated its belief that academic freedom is protected by the Constitution. In addition, Justice Frankfurter outlined the “four essential freedoms” of a university: "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." d. Keyishian v. Bd. of Regents , 385 U.S. 589 (1967). This case finally extended First Amendment protection to academic freedom. Faculty at the State University of New York at Buffalo were forced to sign documents swearing that they were not members of the Communist Party. The faculty members refused to sign the documents and were fired as a result. Because of Adler , the New York State Law prohibiting membership in subversive groups was still in effect. This time, however, the Court specifically overturned its decision in Adler , ruling that by imposing a loyalty oath and prohibiting membership in “subversive groups,” the law unconstitutionally infringed on academic freedom and freedom of association. As the Court held: “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

B. Contractual Rights

Sometimes colleges and universities decide to bestow specific academic freedom rights upon professors via school policy. Internal sources of contractual obligations may include institutional rules and regulations, letters of appointment, faculty handbooks, and, where applicable, collective bargaining agreements. Academic freedom rights are often explicitly incorporated into faculty handbooks, which are sometimes held to be legally binding contracts. See, e.g., Greene v. Howard University , 412 F.2d 1128 (D.C. Cir. 1969) (ruling faculty handbook “govern[ed] the relationship between faculty members and the university”). See also Jim Jackson, “Express and Implied Contractual Rights to Academic Freedom in the United States,” 22 Hamline Law Review 467 (Winter 1999). See generally AAUP Legal Technical Assistance Guide, “Faculty Handbooks As Enforceable Contracts: A State Guide” (2005 ed.).

C. Academic Custom and Usage

Academic freedom is also often protected as part of "academic custom" or "academic common law." Courts analyzing claims of academic freedom often turn to the AAUP’s Joint 1940 Statement of Principles on Academic Freedom and Tenure . The 1940 Statement provides a measured definition of academic freedom, stating:

Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties. . . . Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. . . . College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

AAUP, Policy Documents and Reports , 3-4 (10th ed. 2006) (hereafter “Redbook”). As the U.S. Court of Appeals for the District of Columbia Circuit observed in Greene v. Howard University :

Contracts are written, and are to be read, by reference to the norms of conduct and expectations founded upon them. This is especially true of contracts in and among a community of scholars, which is what a university is. The readings of the market place are not invariably apt in this non-commercial context.

412 F.2d at 1135.

The U.S. Supreme Court explicitly recognized the importance of this type of contextual analysis in Perry v. Sindermann , 408 U.S. 593, 601 (1972). In Perry , the Court held that just as there may be a "common law of a particular industry or of a particular plan," so there may be an "unwritten 'common law' in a particular university" so that even though no explicit tenure system exists, the college may "nonetheless . . . have created such a system in practice.” Similarly, another federal appeals court found that jointly issued statements of AAUP and other higher education organizations, such as the 1940 Statement , "represent widely shared norms within the academic community" and, therefore, may be relied upon to interpret academic contracts. Browzin v. Catholic University of America , 527 F.2d 843, 848 n. 8 (D.C. Cir. 1975); see also Roemer v. Board of Public Works of Maryland , 426 U.S. 736 (1976) (relying on 1940 Statement ’s definite of academic freedom); Tilton v. Richardson , 403 U.S. 672 (1971) (same); Bason v. American University , 414 A.2d 522 (D.C. 1980) (noting the "customs and practices of the university"); Board of Regents of Kentucky State University v. Gale , 898 S.W.2d 517 (Ky. Ct. App. 1995) (examining the "custom" of the academic community in defining the meaning of "endowed chair" and whether the position carried tenure).

Faculty Academic Freedom in the Classroom

One of the most fertile areas for claims of academic freedom and First Amendment protection is, of course, classroom teaching. Speech by professors in the classroom at public institutions is generally protected under the First Amendment and under the professional concept of academic freedom if the speech is relevant to the subject matter of the course. See, e.g., Kracunas v. Iona College , 119 F.3d 80, 88 & n. 5 (2d Cir. 1997) (applying the "germaneness" standard to reject professor's academic freedom claim because "his conduct [could not] be seen as appropriate to further a pedagogical purpose," but noting that "[t]eachers of drama, dance, music, and athletics, for example, appropriately teach, in part, by gesture and touching"). At private institutions, of course, the First Amendment does not apply, but professors at many institutions are protected by a tapestry of sources that could include employment contracts, institutional practice, and state court decisions. The specific areas of classroom speech could include, among others, the following:

A. Classroom Teaching Methods

Are faculty members able to select and use pedagogical methods they believe will be effective in teaching the subject matter in which they are expert? Faculty members are, of course, uniquely positioned to determine appropriate teaching methods. Courts may restrict professors’ autonomy, however, when judges perceive teaching methods to cross the line from pedagogical choice to sexual harassment or methods irrelevant to the topic at hand.

1. Hardy v. Jefferson Community College , 260 F.3d 671 (6th Cir. 2001), cert. denied , 535 U.S. 970 (2002). In Hardy , an African-American student and a "prominent citizen" complained about the allegedly offensive language used by Kenneth E. Hardy, an adjunct communications professor, in a lecture on language and social constructivism in his "Introduction to Interpersonal Communication" course. The students were asked to examine how language "is used to marginalize minorities and other oppressed groups in society," and the discussion included examples of such terms as "bitch," "faggot," and “nigger." While the administration had previously informed Professor Hardy that he was scheduled to teach courses in the fall, after the controversy erupted the administration told him that no classes were available. A federal appeals court concluded that the topic of the class – "race, gender, and power conflicts in our society" – was a matter of public concern and held that "a teacher’s in-class speech deserves constitutional protection." The court opined: "Reasonable school officials should have known that such speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment." 2. Vega v. Miller , 273 F.3d 460 (2d Cir. 2001), cert. denied , 535 U.S. 1097 (2002) Not all courts agree that individual professors have the academic freedom to select the pedagogical tools they consider most appropriate to teach their subject matter. In Vega v. Miller , for example, Edward Vega, a non-tenure-track professor of English, sued the New York Maritime College when the state-run college declined to reappoint him after he led what the college referred to as an "offensive" classroom exercise in “clustering" (or word association) in a remedial English class. The clustering exercise required students to select a topic and then call out words related to the topic. In Professor Vega's summer 1994 class, the students selected the topic of sex, and the students called out a variety of words and phrases, from "marriage" to "fellatio." Administrators found that the professor's conduct "could be considered sexual harassment, and could create liability for the college," and therefore decided not to renew his contract. Vega argued that the nonreappointment violated his constitutional academic freedom. The federal appeals court sided with the administrators, holding that at the time they made their decision on Vega’s contract, no court opinion had conclusively determined that an administration’s discipline of a professor for not ending a class exercise violated the professor’s clearly established First Amendment academic freedom rights. The same court has, however, recognized as constitutionally protected a professor’s First Amendment academic freedom "based on [his] discussion of controversial topics in the classroom." Dube v. State University of New York , 900 F.2d 587, 597-98 (2d Cir. 1990), cert. denied , 501 U.S. 1211 (1991). See also Cohen v. San Bernardino Valley College , 92F.3d 968 (9th Cir. 1996), cert. denied , 520 U.S. 1140 (1997), and Silva v. University of New Hampshire , 888 F. Supp. 293 (D.N.H. 1988) (declining to apply institutional sexual harassment policies to punish professor who used "legitimate pedagogical reasons,” which included provocative language, to illustrate points in class and to sustain his students' interest in the subject matter of the course). 3. Bonnell v. Lorenzo (Macomb Community College), 241 F.3d 800, cert. denied , 534 U.S. 951 (2001). Of course, a professor's First Amendment right to academic freedom is not absolute. As First Amendment and academic freedom scholar William Van Alstyne has said, “There is . . . nothing . . . that assumes that the First Amendment subset of academic freedom is a total absolute, any more than freedom of speech is itself an exclusive value prized literally above all else.” Van Alstyne, "The Specific Theory of Academic Freedom and the General Issue of Civil Liberty," in The Concept of Academic Freedom 59, 78 (Edmund L. Pincoffs ed., 1972). And so, even when courts recognize the First Amendment right of academic freedom for individual faculty members, courts often balance that interest against other concerns. In Bonnell v. Lorenzo , a federal appeals court upheld Macomb Community College’s suspension of John Bonnell, a professor of English, for creating a hostile learning environment. A female student sued the professor, claiming that he had repeatedly used lewd and graphic language in his English class. While recognizing the importance of the First Amendment academic freedom of the professor, the court concluded that “[w]hile a professor's rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student’s right to learn in a hostile-free environment.” Significantly, unlike the speech in Hardy , the court found Bonnell’s use of vulgar language “not germane to the subject matter” and therefore unprotected.

B. Curricular Choices and Academic Freedom

The right of teachers "to freedom in the classroom in discussing their subject" under the 1940 Statement is inextricably linked to the rights of professors to determine the content of their courses. The AAUP’s Statement on Government of Colleges and Universities provides that faculty have "primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction." As one commentator noted: "Faculty will always have the best understanding of what is essential in a field and how it is evolving." Steven G. Poskanzer, Higher Education Law: The Faculty 91 (The Johns Hopkins University Press 2002). Moreover, the expertise of a professor and a department helps insulate administrators and trustees from political pressures that may flow from particularly controversial courses.

1. Axson-Flynn v. Johnson , 356 F.3d 1277 (10th Cir. 2004). One case that directly raises the issue of academic freedom in determining curriculum—as well as the tension between the academic freedom of professors and the academic freedom of students—is Axson-Flynn v. Johnson . Christina Axson-Flynn was a Mormon student at the University of Utah, who, she says, told the theater department before being accepted that she would not "take the name of God or Christ in vain" or use certain "offensive" words. After she was accepted into the program, she changed some words in assigned scripts for in-class performances so as to avoid using words she found offensive. Her professors warned her that she would not be able to change scripts in future assignments. Axson-Flynn dropped out of the special theater program and sued her professors, arguing that her First Amendment rights to free speech and free exercise of religion had been violated. In 2001, a federal trial court ruled against Axson-Flynn. The court reasoned that if the program requirements constituted a First Amendment violation, "then a believer in ‘creationism' could not be required to discuss and master the theory of evolution in a science class; a neo-Nazi could refuse to discuss, write or consider the Holocaust in a critical manner in a history class." The federal appeals court agreed that courts should defer to faculty members’ professional judgment with respect to teaching and curriculum, but sent the case back for the trial court to determine whether the professors’ rationale for compelling Axson-Flynn to perform the scripts as written “was truly pedagogical or whether it was a pretext for religious discrimination.” The court ruled that the teachers were allowed to compel speech from Axson-Flynn as long as doing so was “reasonably related to pedagogical concerns.” Although the court did not recognize a specific right to academic freedom within the First Amendment, it did observe that within the university context, the First Amendment had special significance. 2. Yacovelli v. Moeser , Case No. 02-CV-596 (M. D. N.C., Aug. 15, 2002), aff'd ,Case No. 02-1889 (4th Cir. Aug. 19, 2002). One widely publicized example of a curriculum controversy involved the 2002 summer reading program at the University of North Carolina (UNC) at Chapel Hill. At the beginning of the school year, UNC scheduled a schoolwide discussion for all new students based on the book Approaching the Qur'an: The Early Revelations , by Michael Sells, a professor at Haverford College. A group of students and taxpayers sued to halt the summer program, arguing that the assignment of the book violated the First Amendment doctrine of separation of church and state under the "guise of academic freedom, which is often nothing other than political correctness in the university setting." The university argued that the program was not endorsing or promoting a particular religion, and that if the court issued an injunction it would chill academic freedom because "the decision was entirely secular, academic, and pedagogical." As one English professor inquired: "Would next year’s committee be forbidden to require incoming students to read The Iliad , on the grounds that it could encourage worship of strange, disgraceful gods and encourage pillage and rape?" The federal trial court ruled in favor of the university and denied the plaintiffs’ request to halt the reading sections, holding: "There is obviously a secular purpose with regard to developing critical thinking, [and] enhancing the intellectual atmosphere of a school for incoming students." The day of the reading program, the federal appeals court upheld the trial court's ruling. In general, academic courses are not subject to a legal mandate for "equal time" to explore the “other side” of an issue. As Justice Stevens noted in his concurrence in the Supreme Court case Widmar v. Vincent , 454 U.S. 263,278-79 (1981), the "judgments" about whether to prefer a student rehearsal of Hamlet or the showing of Mickey Mouse cartoons "should be made by academicians, not by federal judges." 3. Linnemeir v. Board of Trustees , Indiana University-Purdue University, Fort Wayne, 260 F.3d 757 (7th Cir. 2001). Similarly, another federal appellate court ruled that faculty approval of a controversial play selected by a student for his senior thesis, which offended some religious individuals, did not violate the First Amendment. In Linnemeir , some Indiana taxpayers and state legislators sued to force Indiana University-Purdue University (IPFW) to halt the campus production of Terrence McNally's play Corpus Christi , which had been unanimously approved by the theater department faculty committee. The taxpayers and legislators argued that the play was an “undisguised attack on Christianity and the Founder of Christianity, Jesus Christ," and claimed that performance of the play on a public university campus therefore violated the First Amendment’s guarantee of separation of church and state. The federal appeals court permitted the play to be performed. The majority opined: "The contention that the First Amendment forbids a state university to provide avenue for the expression of views antagonistic to conventional Christian beliefs is absurd." It continued: "Classrooms are not public forums; but the school authorities and the teachers, not the courts, decide whether classroom instruction shall include works by blasphemers. . . . Academic freedom and states' rights alike demand deference to educational judgments that are not invidious." 4. Edwards v. California University of Pennsylvania , 156 F.3d 488 (3rd Cir. 1998), cert. denied , 525 U.S. 1143 (1999). Another federal appellate court has ruled that professors have no First Amendment right of academic freedom to determine appropriate curriculum, though under somewhat different circumstances. In Edwards , Dilawar M. Edwards, a tenured professor in media studies, sued the administration for violating his right to free speech by restricting his choice of classroom materials in an educational media course. The classroom materials, which emphasized issues of “bias, censorship, religion and humanism,” had been disapproved by the media studies department, which had voted to use an earlier version of the syllabus. The court concluded that because “a public university professor does not have a First Amendment right to decide what will be taught in the classroom,” it was not relevant whether the professor’s course content was “reasonably related to a legitimate educational interest.” The court’s conclusion, however, appears to have been influenced by the fact that Edwards’ departmental colleagues had approved a different syllabus – reinforcing the principle that professors as a whole, if not always individual professors, have the right to determine curricular focus. 5. FAIR v. Rumsfeld , 547 U.S. (2006). This Supreme Court case involved a federal law known as the Solomon Amendment, which required that colleges and universities allow the military full access to recruiting on campus. Any university excluding military recruiters from campus faced a loss of federal funding, even if only one component of the university flouted the law. Because of the military’s “don’t ask, don’t tell” policy on sexual orientation, a number of law schools objected to the access requirement, arguing that the requirement violated the schools’ own anti-discrimination policies. A coalition of law schools sued the federal government, arguing that having to choose between violating their nondiscrimination policies and losing millions of dollars of federal funding violated their First Amendment rights to academic freedom, free speech, and freedom of association. The Supreme Court decided that the law schools must permit the military to recruit on campus. Reasoning that law schools still had a number of other ways to publicize their objections to the military’s policies, including signs and protests, the Court concluded that “the Solomon Amendment neither limits what law schools may say nor requires them to say anything.”

C. Grading Rights

One recurring issue is whether a university administration has the right to change a grade given by a faculty member to a student—or, to phrase the issue differently, whether the faculty member has the academic freedom to assign the grade without interference or second-guessing by administrators. The answer to the first formulation of the issue (at least under current case law) is generally yes; the answer to the second is that it depends on the court.

The AAUP affirms the right of faculty members to assign student grades and oversee any changes to grades. Under the 1940 Statement of Principles on Academic Freedom and Tenure , one faculty right that flows from a "teacher's freedom in the classroom" is the assessment of student academic performance, including the assignment of particular grades. In addition, the AAUP Statement on the Assignment of Course Grades and Student Appeals sets forth principles to be followed in assigning and changing grades, with a focus on faculty control over assignment and review of grades.

Some courts have acknowledged that instructors have the right to assign grades to students. See, e.g., Regents of the University of Michigan v. Ewing , 474 U.S. 214 (1985) (noting that “judges . . . should show great respect for the faculty's professional judgment”); Settle v. Dickson County School Board , 53 F.3d 152 (6th Cir. 1995) (observing, in a K-12 case, that “teachers . . . must be given broad discretion to give grades”). However, professors may be required to conform to university-wide grading procedures, particularly when the policies have been developed or approved by the faculty. For instance, in Wozniak v. Conry , 236 F.3d 888(7th Cir.), cert. denied , 121 S.Ct. 2243 (2001), a federal appeals court ruled that the University of Illinois at Urbana-Champaign did not violate due process rights of a tenured professor at the undergraduate engineering school because he failed to comply with established grading policies when he refused to submit the required materials for review: "No person has a fundamental right to teach undergraduate engineering classes without following the university's grading procedures.”

Courts have generally distinguished, however, between the right to assign a grade and the right not to have the institution itself change the grade. For instance, in Parate v. Isibor (Tennessee State University), 868 F.2d 821 (6th Cir. 1986), a federal appeals court agreed that requiring the professor himself to change a grade violated the professor’s First Amendment right “to send a specific message to the student,” but simultaneously held that a professor "has no constitutional interest in the grades which his students ultimately receive." The court therefore permitted the administration to change the grade, even if the administration could not compel the professor to do so.

In 2001, another federal appeals court went even further, rejecting the reasoning in Parate . In Brown v. Armenti , 247 F.3d 69 (3rd Cir. 2001), a tenured professor at the California University of Pennsylvania objected to being ordered by the president of the university to change a student's grade from an "F" to an incomplete. The Third Circuit ruled in favor of the university president, concluding that a "public university professor does not have a First Amendment right to expression via the school's grade assignment procedures." It reasoned: "Because grading is pedagogic, the assignment of the grade is subsumed under the university's freedom to determine how a course is to be taught."

(For a more in-depth discussion of the First Amendment and academic freedom implications of grading, see Donna Euben, Who Grades Students?  (2001).)

D. Legislative Intrusion into Faculty Speech in the Classroom

In recent years, through “Academic Bill of Rights” proposals (ABOR) and their successors, “Intellectual Diversity in Higher Education” bills, state legislators have injected themselves into curricular decision-making. Although legislative language varies from state to state, the overall thrust has been the same: to increase so-called political diversity in the faculty, and to expand both legislative oversight over what professors may teach and the power of students to challenge teachings methods or ideologies with which they disagree.

Some of the provisions that pose the greatest risk of infringement on faculty members’ First Amendment and academic freedom rights include requirements that faculty members provide students with information on “dissenting viewpoints,” regardless of scholarly consensus in the field; the significant influence that student complaints would have over whether faculty members are seen to be introducing “controversial” material into the classroom; and increased administrative oversight over professors’ freedom to grade their students. For more background, see “ The ‘Academic Bill of Rights’ – Coming to Your Campus ."

So far, faculty members and university administrations have been largely successful in fending off these challenges to academic freedom. Individual faculty members and higher education associations and leaders have educated legislators about the policies that already exist at many institutions – many based in substantial part on AAUP model policies – and the absence of a real threat to students’ freedom from indoctrination, politically-motivated grading, and other supposed dangers. Nevertheless, some states have contemplated statutes that, if passed, would represent an unprecedented incursion into professors’ First Amendment and academic freedom rights.

To take just one example, in February 2007, the Arizona state senate considered a bill that would have banned faculty members at public colleges and universities in the state from endorsing, supporting, or opposing any candidate for office, any pending legislation, or any court litigation; advocating “one side of a social, political, or cultural issue that is a matter of partisan controversy;” or obstructing military recruiting activity on campus or supporting those who do. See " $500 Fines for Political Profs ," Inside Higher Ed (Feb. 19, 2007). Failure to comply with the restrictions could have resulted in criminal prosecutions and fines of up to $500. The legislative sponsor, state senator and Republican majority leader Thayer Verschoor, cited a 14-year-oldincident from when he was a student, in which he was offended by a classroom exercise (in a class in which he was not enrolled) that required male students to dress up like women. Rejecting the charge that the bill violated academic freedom, Sen. Verschoor said, “You can speak about any subject you want – you just don’t take a position.” Even David Horowitz, father of the ABOR, opposed the policy, saying that he had never advocated limits imposed by the legislature on faculty speech in the classroom. Id . Although the bill did not pass, it hints at the anxiety felt in many states about the bedrock principles of academic freedom, which are inextricably tied to the protections of the First Amendment.

Because no statutes of this type have yet passed a state legislature, no courts have yet tackled the contours of their entrenchment onto academic freedom rights. Nevertheless, AAUP policy on this issue is quite clear. As the AAUP Statement on the Academic Bill of Rights says, “The Academic Bill of Rights . . . threatens to impose administrative and legislative oversight on the professional judgment of faculty, to deprive professors of the authority necessary for teaching, and to prohibit academic institutions from making the decisions that are necessary for the advancement of knowledge . . . . The AAUP has consistently held that academic freedom can only be maintained so long as faculty remain autonomous and self-governing.” Indeed, as historian Walter Metzger said a quarter of a century ago:

[A state legislature] invades the very core of academic freedom . . . when it dictates the contents of any course at any level or for any purpose. . . . [Doing so] converts the university into a bureau of public administration, the subject into a vehicle for partisan politics or lay morality, and the act of teaching into a species of ventriloquism. . . . The central precepts of academic freedom . . . are that professors should say what they believe without fear or favor and that universities should appoint meritorious persons, not followers of a diversity of party lines.

Walter R. Metzger, "Comments on Creationism and the Classroom," Academe 12 (Mar.-Apr. 1982). For further ideas on how to approach legislators about the importance of preserving academic freedom at public institutions, see the appendix to this outline, as well as the many resources on the  Government Relations section of the AAUP website.

Faculty Expression in Institutional Matters

In addition to their teaching, research, and service obligations, faculty members frequently help run their academic institutions through shared governance. Legal issues sometimes arise when faculty members speak out on institutional matters—such as the process by which a college president is appointed or the negative consequences of a new admissions standard. Such faculty criticism is often directed at the institution's governing board, the president and other administrators, and even faculty colleagues. Courts had traditionally used a balancing test when assessing whether faculty expression at a public institution was protected; in light of a recent Supreme Court opinion, however, it is not yet clear how much latitude public faculty members have to speak, and under what circumstances.

A. “Matters of Public Concern” Test

Before 2006, federal courts relied on a “matters of public concern” test in determining whether speech by public employees – including faculty members at public institutions – was protected. Under the “matters of public concern” test, which was developed largely in cases not related to academics, a court considered whether the employee had uttered the challenged speech in the course of the employee’s job responsibilities or as a private citizen, and whether the speech addressed a “matter of public concern.” If the employee failed to show either of these things, then the speech was not protected by the First Amendment. If the professor could show that he or she spoke as a private citizen on a matter of public concern, then the court would balance the employee’s interest in speaking against the public employer’s (i.e., the university’s) interest in the overall functioning of the workplace. Only if the employee’s interest in speaking on the issue in question outweighed the employee’s interest in a functioning workplace would the employee’s speech be protected by the First Amendment.

1. Schrier v. University of Colorado. Robert Schrier, a doctor and a tenured faculty member at the University of Colorado School of Medicine, chaired the department of medicine for over 20 years until the administration removed him from that position in October 2002. Dr. Schrier opposed the Board of Regents’ decision to move the medical school to another campus. He sued the school, arguing, in part, that his removal as chair violated his First Amendment right of academic freedom. The district court rejected Dr. Schrier's legal claims. The court found that Dr. Schrier's status as a university professor, who also served as department chair, entitled him to no rights distinct from those of any other public employees. The federal appeals court affirmed the denial of Schrier's injunction by the lower court, affirming that Schrier's speech was on a matter of public concern, but ruling that the administration's interest in suppressing Schrier's speech outweighed his right to free expression. The court appeared to focus on Dr. Schrier’s status as a department chair in reaching its decision. 2. Crue v. Aiken (University of Illinois-Champaign). This case involved a challenge by faculty and students at the University of Illinois-Champaign to the administration’s policy prohibiting them from communicating with prospective student athletes. The faculty and students opposed the school's use of the Chief Illiniwek mascot, and contended, in part, that the mascot created a hostile learning environment for Native American students and increased the difficulty of recruiting Native American students to the campus. They wished to contact prospective student athletes to make them aware of this controversy. The district court ruled in favor of the faculty and students, finding that the administration's directive violated the First Amendment. The Seventh Circuit, in a 2-1 decision, ruled that an administrative directive prohibiting faculty and students from communicating with prospective student athletes violated the First Amendment, because the directive constituted a prior restraint. The majority also concluded that the chancellor's directive was “a broad prohibition” on speech that was “on a matter of significant important and public concern” and therefore was protected speech.

B. “Official Duties” Test – Garcetti v. Ceballos and Developing Law

Of course, in the academic context, professors frequently speak on “matters of public concern” – the economy, politics, health, global warming, etc. And that speech is also an integral part of their job as public employees. In 2006, the Supreme Court decided a case that, in many ways, adopted the most restrictive understanding of public employees’ speech rights. In Garcetti v. Ceballos , 547 U.S. –, 126 S.Ct. 1951 (2006), the U.S. Supreme Court ruled that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” No more balancing test or “public concern” inquiry need be done. The court explicitly set aside speech in the academic context, however, holding that “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for” by the Court’s decision. The court therefore concluded that “we need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Justice Souter added in dissent that “I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”

C. Post- Garcetti Cases

The cases that have been decided on public employees’ speech rights since Garcetti give some window into the possible effect on public university faculty members’ speech rights; however, because the courts so far have considered only secondary and elementary schoolteachers, not university faculty, there is no firm guidance yet on how much protection courts might give to faculty members speaking in the course of their jobs.

1. Casey v. West Las Vegas Independent School District , 473 F.3d 1323 (10th Cir. 2007). In Casey , a school district superintendent brought a retaliation claim against the school board, asserting that she was demoted because of her criticism of the board’s decisions concerning the Head Start program. The court ruled that the superintendent’s job duties included reporting to the board about the Head Start program, and the superintendent’s speech therefore was not constitutionally protected. 2. Ryan v. Shawnee Mission Unified School District No. 512, 437 F. Supp. 2d 1233 (D. Kan. 2006). Ryan was a physical therapist who worked at a school district with children whose health problems interfered with their education. Ryan complained to her director that too many children needed her services, and that some were being denied adequate care. As a result, she was eventually asked to resign. The federal trial court decided that most of Ryan’s speech was made not as a citizen but as part of her job duties, and that she could thus be fired for complaining.

3. Mayer v. Monroe County Community School Corporation , 2007 U.S.App. LEXIS 1469 (7th Cir. Jan. 24, 2007). Although this case took place in an elementary school rather than in an institution of higher education, it helps illustrate how some courts might approach higher education cases under Garcetti . Deborah Mayer, a probationary first-year elementary school teacher, was asked by her students if she participated in political demonstrations; she replied that she honked her horn in support of a peace demonstration. After some parents complained, Mayer’s contract was non-renewed, and Mayer sued, claiming that the school’s decision was retaliatory and was a violation of her First Amendment rights. The trial court ruled in favor of the school district, concluding, among other things, that “because the uncontroverted facts establish that Ms. Mayer expressed her views to her students at a time and place and as part of her official classroom instruction,” she was acting as an “employee,” rather than as a “citizen,” leaving her speech constitutionally unprotected. The federal appeals court affirmed the trial court’s decision. Noting that primary and secondary school teachers must stick to the prescribed curriculum, including any prescribed viewpoint, the appeals court reasoned: “This is so in part because the school system does not ‘regulate’ teachers’ speech as much as it hires that speech. Expression is teacher’s stock in trade, the commodity she sells to her employer in exchange for as alary.” Although the case did not raise issues of post-secondary instruction, the court remarked that because college professors are hired to instruct students, “employers are entitled to control speech from an instructor to a student on college grounds during working hours.” Although this part of the court’s opinion is not binding on other courts examining issues of faculty speech, it remains to be seen whether courts will adopt this reasoning as more faculty speech cases arise. 4. Head v. Bd. of Trustees of California State University , 2007 Cal. App. Unpub. LEXIS 393 (Cal. Ct. App. 2007) (unpub.). Stephen Head, a student in a teaching credential program, alleged that because he disagreed with the professor’s viewpoint in a required class on multiculturalism, he received an F in the course and was placed on academic probation. An internal subcommittee rejected Head’s grievance, finding that the professor had given Head grading criteria on the course syllabus, assessments on returned assignments, and extended opportunities to resubmit corrected work. Head then sued the university, arguing that his First Amendment and due process rights were violated by the curriculum, his grade, his treatment during the course, and the “professional dispositions” that teaching credential candidates had to demonstrate. He asked that the university change his failing grade to an A or a B, and asked for an injunction against the use of the professional dispositions, against infringement of the constitutionally protected speech of teaching credential students, and against grade discrimination against “White, White-appearing, or male” credential candidates. The trial court denied Head’s petition, and the appeals court upheld the lower court’s decision, firmly holding that “the First Amendment broadly protects academic freedom in public colleges and universities.” With respect to Head’s request that his grade be changed, the appeals court emphasized that academic decisionmaking is not traditionally appropriate for judicial review and that judges should respect a faculty member’s professional judgment. On Head’s free speech claims, the appeals court indicated that instructors can exercise reasonable control over student expression during class to ensure that students learn the lessons that are being taught. The court further held:

Public university instructors are not required by the First Amendment to provide class time for students to voice views that contradict the material being taught or interfere with16instruction or the educational mission. Although the First Amendment may require an instructor to allow students to express opposing views and values to some extent where the instructor invites expression of students’ personal opinions and ideas, nothing in the First Amendment prevents an instructor from refocusing classroom discussions and limiting students’ expression to effectively teach.

The court concluded by affirming that “institutional assessments of a student’s academic performance . . . necessarily involve academic determinations requiring the special expertise of educators.”

5. Payne v. University of Arkansas Fort Smith , 2006 U.S. Dist. LEXIS 52806(W.D. Ark. July 26, 2006). Diana Payne, a tenured professor at the University of Arkansas, was fired after nineteen years of service. Before she was fired, among other things, Payne complained to a university administrator about a new university policy governing time spent on campus, arguing that the policy was a “huge disservice to the community.” She contended that in retaliation for her email complaint she was assigned the rank of Instructor, rather than the higher rank of Assistant Professor. The court determined that even though the email invoked community concerns, the “crux” of it was Payne’s “dissatisfaction with an internal employment policy and not an issue of public concern.” The court therefore concluded that her email was not protected speech under the First Amendment, and dismissed Payne’s claim of retaliation.

D. Other Standards for Protection of Speech

1. Crue v. Aiken , 370 F.3d 668 (7th Cir. 2004). Crue v. Aiken , described earlier, arose from a dispute at the University of Illinois involving its then-mascot Chief Illiniwek. Faculty and students at the university opposed the administration’s policy prohibiting communication with prospective student athletes, arguing that they wanted to be able to inform prospective students about the racial injustice aspects of the use of the mascot. A previous Supreme Court opinion had held that when the government seeks to prohibit speech in advance (rather than punishing speech after the fact), the government employer must show that the impact of the expression on the employer’s (here, the university’s) operations is so significant that it outweighs the interest of any other audience in hearing the speech. United States v. NTEU , 513 U.S. 454 (1995). Relying on NTEU , the appeals court in Crue held that the faculty’s and students’ right to question what they believed was a racist practice outweighed the University’s interest in halting the speech. Therefore, if a professor-plaintiff can characterize a university action as a restraint imposed on as yet unspoken speech, instead of as punishment for speech that has already taken place, the faculty member may be more likely to win his/her case.

Academic Freedom and the Internet

In general, the intersection of academic freedom and the Internet is guided by the same rules that govern other areas of faculty speech. However, several important cases have arisen in the context of regulation of faculty access to the internet.

A. Use of University-Owned Computers and E-mail

In Urofsky v. Gilmore , 216 F.3d 401 (4th Cir. 2000), a federal appeals court upheld the constitutionality of a Virginia law that banned professors from using university computers to “access, download, print or store any information infrastructure files or services having sexually explicit content.” The law did allow for one small exception: a professor could apply to the university to conduct research on a sexually explicit topic, and as long as the university considered the project to be “bona fide,” the professor would be permitted to conduct research on the topic. Relying heavily on this exception, the court upheld the law. The court opined that the university, rather than individual professors, holds the First Amendment right to research, and emphasized that without the exception, the law might infringe upon the universities’ First Amendment rights.

The reasoning in Urofsky ─ which could potentially be extended to state-imposed bans on research regarding other controversial topics – has been followed by other circuits and was even cited in the Garcetti decision. See, for example, Harrison v. Coffman , 111 F. Supp. 2d1130, 1131 (D. Ark. 2000); Johnson-Kurek v. Abu-Absi , 423 F.3d 590, 593 (6th Cir. 2005); Campbell v. Galloway , 483 F.3d 258, 266 (4th Cir. 2007); Erickson v. City of Topeka , 209 F. Supp. 2d 1131, 1143 (D. Kan. 2002). Similarly, in Loving v. Boren , 956 F. Supp. 953, 955 (D. Okla. 1997), a federal trial court held that the University of Oklahoma did not violate a journalism professor’s First Amendment rights by blocking access from his campus computer to an “alt.sex” host, because the professor could obtain the material he sought through a commercial on-line service.

In Bowers v. Rector & Visitors of the University of Virginia , 478 F. Supp. 2d 874, 878(D. Va. 2007), Bowers worked in the human resources (HR) department for the University of Virginia. She attended a meeting about pay increases that was held by the NAACP, of which she was a member. One of her co-workers in the HR department asked Bowers to forward her the information from the NAACP meeting. The co-worker then sent out the NAACP information to dozens of other people, one of whom sent the email out to “hundreds” of people. Bowers was fired for using her university email account to send out this email. The court held that Bower’s speech in her email was not protected, since she used her university email account to send the information. In addition, the email appeared to be from Bowers as an HR employee rather than as a private citizen. Her email was thus not protected by the First Amendment.

In addition to the First Amendment, the Fourth Amendment to the Constitution, which protects citizens from unreasonable searches and seizures by the government, comes into play incases of possible violations of email privacy at public institutions. For a case list, see Donna Euben, Academic Freedom of Professors and Institutions  (2002), pp. 22-24.

According to AAUP policy, expression in cyberspace does not “justify alteration or dilution of basic principles of academic freedom and free inquiry within the academic community.” Academic Freedom and Electronic Communications, Academe (July-August1997). See the Appendix to this outline for suggestions on developing a sustainable university policy regarding the use and privacy of email.

B. Faculty Websites and Academic Freedom

Faculty are sometimes given space on a university web server for faculty web pages. Courts have generally held that because the university server is not a public forum, public universities can regulate, at least to some extent, the content put on the web pages. If the university opens up the websites to the general public (via online message boards or other public forums), however, then the university is likely to be restricted from imposing content-based bans on speech expressed there. Putnam Pit, Inc. v. City of Cookeville , 221 F.3d 834, 844 (6th Cir.2000). As a general rule, however, public universities may regulate content on faculty webpages as long as the restrictions are reasonable and are not simply an attempt to suppress faculty viewpoint.

In addition to faculty members’ conditional right to communicate on the internet, students are sometimes said to have a right to receive speech. Meyer v. Nebraska , 262 U.S. 390(U.S. 1923); see also Lamont v. Postmaster General , 381 U.S. 301 (U.S. 1965) and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748 (U.S. 1976).”The U.S. Supreme Court has referred to a First Amendment right to receive information and ideas, and that freedom of speech necessarily protects the right to receive.” Students’ First Amendment right to receive their professors’ speech through the internet – as yet untested in court – could further constrain the ability of public universities to tightly restrict professors’ online speech.

A Note on Private Universities

Private universities are largely not subject to the constitutional requirements described above, and students, faculty, and staff at most private universities therefore do not enjoy a “First Amendment” right of protection against discipline for speech-related infractions. 3 They may, however, have certain free-speech-related rights deriving not from the First Amendment but from policies adopted by the institution. 4 Faculty at private schools, therefore, have a particularly strong interest in having principles of academic freedom written into their employment contracts and faculty handbooks.

Some thoughts on defining and protecting faculty academic freedom, and talking to legislators, administrators, and others about academic freedom and appropriate policies

Locating your rights

Often the answer to whether something is protected by academic freedom or the First Amendment is, ¡§it depends.¡¨ You can, however, try to make an educated assessment of your rights and obligations. Although this list is by no means exhaustive, it will help in thinking about where to go to determine the scope of your rights and the circumstances in which the institution can restrict them:

• If so, the First Amendment generally applies – but, as described above, the First Amendment and academic freedom are not coextensive, and the law is quite unsettled in some areas.
• Do you have a faculty handbook and/or collective bargaining contract? They may further define the scope of academic freedom.
• Has your institution taken steps to restrict speech rights in area in which speech rights may be lawfully restricted (i.e., on university-wide computer systems)? If so, have they done so clearly and consistently, and in a manner that does not depend upon the content of the speech?
• Was the speech in question clearly related to the internal administration of the university (in which case universities have better legal authority for restricting it),or was it related to scholarship and other academic issues (in which case there may be a stronger argument that it should be protected by the First Amendment)?
• Was the conduct "germane to the subject matter"? If so, there is a stronger argument for protection under the First Amendment.
• Are you at a private school? If so, look to your employment contract, faculty handbook, and other university policies.

Working with university administrators on general policies:

• Employment contracts and employee handbooks are good places to codify a university's policy towards academic freedom. The Redbook, of course, provides a number of model policies for the protection of academic freedom and a number of other issues.
• Many universities have implemented anti-harassment policies. Harassment policies should track the discrimination laws and be applied so as to recognize the different types of issues that arise in the context of higher education. Anti-discrimination policies should regulate conduct, not the content of speech.
• University officials should articulate values of tolerance and civility, and respond with “more speech" when racist or sexist expression takes place.
• Content-neutral regulations can be used to limit disruptive behavior and expression (e.g., rules against fighting words, disturbing the peace, alcohol and drug abuse, vandalism of property, arson).

Developing an email use policy:

• Every college or university should make clear, to all users, any exceptions it considers it must impose upon the privacy of electronic communications.
• There must be substantial faculty involvement both in the formulation and in the application (with due process) of any such exceptions.
• Third, the general standard of e-mail privacy should be that which is assured to persons who send and receive sealed envelopes through the physical mail system—that envelopes would not be opened by university officials in the absence of exigent circumstances (e.g., leaking a noxious substance, indicia of a bomb, etc.).
• If a need arises to divert or intercept a private e-mail message, both sender and recipient should be notified of that prospect in ample time to pursue protective measures—save in the highly improbable case where any delay would risk danger to life, or destruction of property.
• The contents of any such message that has been diverted or intercepted may not be used or disseminated more widely than the basis for such extraordinary action may warrant.

Communicating with legislators 5 :

• Defining the issue in terms of civil liberties can be very helpful with the right policymaker. Anyone who is a staunch defender of free speech, etc., is usually quick to grasp the concept and its importance.
• Fields of study are always evolving, and faculty have the best understanding of what is important in a field. Legislatures are not equipped to take account of the dynamic nature of academia; at institutions with shared governance, legislators can be assured that faculty members and administrators jointly reach decisions, and that another layer of oversight and review would be counterproductive and would undermine the authority of the institution itself. As the AAUP’s Statement on Professional Ethics (1987) says, “It is the mastery teachers have of their subjects and their own scholarship that entitles them toothier classrooms and to freedom in the presentation of their subjects . . . ."
• In talking to legislators who may have very set ideas about "liberal" faculty, use examples that relate to hard science classes, which are usually seen as more neutral and apolitical than the social sciences. When talking about bills that would restrict professors' speech on "controversial" topics, consider giving examples of topics that are accepted by the vast majority, but disputed by a few, and talk about how requiring equal time or attention to the fringe views would give a false impression of the academic weight and disciplinary consensus of each argument/theory.
• If possible, use the clip from the Colbert Report talking about how higher education is intended to take uninformed minds and send them out still uninformed. The message is that professors should respect students, but that student opinions are not appropriately on par with professors' research. If professors are to fulfill their teaching responsibilities, they must be able to challenge assumptions and instill the ability to think critically.

I sometimes find myself faced with people who say, in effect, “I pay ten percent of your salary, and that gives me the right to screen one hundred percent of your thoughts." . . . . [M]y fellow citizens[,] you have every right to know that your money is not being wasted. But you do not have the right to suggest that the biology department should make room for promoters of Intelligent Design; or that the astronomy department should take stock of the fact that many people believe more in astrology than in cosmology; or that the history department should concentrate more on great leaders and less on broad social movements; or that the philosophy department should put more emphasis on deontological rather than on utilitarian conceptions of the social contract. The people who teach these subjects in public universities actually do have expertise in their fields, an expertise they have accumulated throughout their lives. And this is why we believe that decisions about academic affairs should be conducted by means of peer review rather than by plebiscite. It’s a difficult contradiction to grasp: on the one hand, professors at public universities should be accountable and accessible to the public; but on the other hand, they should determine the intellectual direction of their fields without regard to public opinion or political fashion. This is precisely why academic freedom is so invaluable: it creates and sustains educational institutions that are independent of demographic variables. Which is to say: from Maine to California, the content of a public university education should not depend on whether 60 percent of the population doubts evolution or whether 40 percent of the population of a state believes in angels—and, more to the point, the content of a university education should be independent of whatever political party is in power at any one moment in history. 6

1. For further discussion of many of the themes covered in this outline and more, see Donna Euben,  Academic Freedom of Professors and Institutions (2002) and Donna Euben,  Academic Freedom and Professorial Speech (2004); this outline owes a significant debt to both outlines. In addition, 2007 summer legal intern Anna Czarples, University of Minnesota Law School class of 2008, provided significant assistance in the preparation of this outline. Back to text.

2. This article is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance. The views expressed in this article are solely the views of the author and should not be attributed to the American Association of University Professors or its officers or staff. Back to text.

3. California, however, has enshrined First Amendment-style protections for private universities as well: “No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus . . . , is protected from governmental restriction by the First Amendment ….” Cal. Educ. Code § 94367(a) (West, 1998). Back to text.

4. See, e.g., Pitzer College’s Faculty Handbook , which expressly incorporates the 1940 Statement on Academic Freedom and Tenure . Back to text.

5. With many thanks to Nicole Byrd, AAUP’s Government Relations Associate. Back to text.

6. Excerpted with permission from Bérubé’s very thought-provoking blog post on this issue, “ Academic Freedom Again .” (posted June 13, 2006). Back to text.

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Research & Learn

Table of contents, first amendment overview essays.

The essays included in this collection give overviews of some of the most important areas of First Amendment law and scholarship. FIRE hopes that these essays explain the basics of First Amendment case law and jargon in a succinct, yet informative manner. This collection will expand on a regular basis, so please check back for more content.

Chilling Effect

The "chilling effect" refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action. Read more about the chilling effect .

COVID-19 Emergency Measures and the First Amendment

The pandemic caused by the pervasive spread of the virus known as COVID-19 has placed significant pressure on government officials to act quickly to try to save lives and slow the spread of the virus. Many officials have responded with significant restrictions in the form of emergency stay-at-home orders, executive orders closing all but “essential” businesses, and bans on public gatherings — often of groups of more than 10 people. . . No matter one’s political beliefs, this time has also placed significant strains on First Amendment freedoms. Read more about COVID-19 emergency measures and the First Amendment.

Defamation refers to false statements of fact that harm another’s reputation. It encompasses both libel and slander. Libel generally refers to written defamation, while slander refers to oral defamation. Read more about defamation .

Fighting Words

The First Amendment may protect profanity directed against another. Then again, such intemperate speech may fall into a narrow, traditionally unprotected category of expression known as “fighting words.” Read more about fighting words .

Freedom of the Press

Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment. What we mean by the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and internet content. Read more about freedom of the press .

K–12 Expression and the First Amendment

Public school students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines (1969). Such rights must, however, be considered in the context of “the special characteristics of the school environment.” This means that while public school students possess free speech rights at school , school officials can regulate speech more as educators than governments can as sovereign. Read more about K–12 expression and the First Amendment .

Nude Dancing

The First Amendment protects much more than the spoken or printed word. It also protects various forms of symbolic speech and expressive conduct. The Supreme Court has ruled that the display of a red flag, the wearing of a black armband, the burning of the American flag and yes, even nude performance dancing are forms of expression that when restricted, require First Amendment review. Read more about nude dancing and the First Amendment.

Overbreadth

Overbreadth is a supremely important concept in First Amendment law and a key tool for constitutional litigators. A law is too broad—or overbroad—when it not only covers speech that ought to be proscribed but also penalizes speech that should be safeguarded. Read more about overbreadth . 

Secondary Effects Doctrine

The secondary effects doctrine allows government officials to treat patently content-based laws as content-neutral. The animating logic is that government officials are not suppressing speech because of its content but because of adverse side effects associated with the speech, such as increased crime or decreased property values. Read more about the secondary effects doctrine . 

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Works Cited

• Bragg, Austin., Volokh, Eugene. “College and the First Amendment: Free Speech Rules (Episode 7).” YouTube, uploaded by ReasonTV, 4 November 2019, www.youtube.com/watch?v=Bg4QLk64dGo.
• Bar-Tal, Daniel. “Self-Censorship as a Socio-Political-Psychological Phenomenon: Conception and Research.” Political Psychology, vol. 38, Feb. 2017, pp. 37–65. EBSCOhost, doi:10.1111.
• Douglas, Frederick “Narrative of the life of Frederick Douglass, an American slave” Boston, Anti-Slavery Office, 1849. pp. 100-102.
• Bonilla, Peter. “Kansas officials demand the University of Kansas remove American flag artwork.” FIRE, 11 Jul. 2018, www.thefire.org/kansas-officials-demand-university-ofkansasremoveamerican-flag-artwork/. Accessed 8 Dec 2019.
• FIRE. “NEW SURVEY: Majority of college students self-censor, support disinvitations, don’t know hate speech is protected by First Amendment.” FIRE, 11 Oct. 2017, www.thefire.org/new-survey-majority-of-college-students-self-censor-supportdisinvitations-dont-know-hate-speech-is-protected-by-first-amendment/. Accessed 8 Dec 2019.
• FIRE. “Student Attitudes Free Speech Survey.” FIRE, 8 Jun. 2017, www.thefire.org/research/ publications/student-surveys/student-attitudes-free-speech-survey/student-attitudes-free-speech-survey-full-text/. Accessed 8 Dec 2019.
• O’Kelley, Elijah. “State Constitutions as a Check on the New Governors: Using State Free Speech Clauses to Protect Social Media Users from Arbitrary Political Censorship by Social Media Platforms.” Emory Law Journal, vol. 69, no. 1, Dec. 2019, pp. 111–161. EBSCOhost,search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=139915141&site=ehost-live&scope=site.
• Powers, Ella, [email protected]., et al. “Shouting Matches and Echo Chambers: Perceived Identity Threats and Political Self-Censorship on Social Media.” International Journal of Communication (19328036), vol. 13, Jan. 2019, pp. 3630–3649. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=ofm&AN=139171908&site=ehostlive&scope=site.
• Tuccille, J.D. “Internet Censorship Is Only for the Little People, French Edition.” Reason, 6 Jun. 2006, www.reason.com/2019/04/11/internet-censorship-in-france/. Accessed 8 Dec 2019.
• Weiss, Ryne. “FIRE calls on Augsburg University to reinstate professor suspended for in-class discussion about racial slur.” FIRE, 11 Feb. 2019, www.thefire.org/fire-calls-onaugsburg-university-to-reinstate-professor-suspended-for-in-class-discussion-about-aracial-slur/. Accessed 8 Dec 2019.
• United States Courts. “What Does Free Speech Mean?” United States Federal Courts Online, www.uscourts.gov/about-federal-courts/educational-resources/about-educational outreach/activity-resources/what-does. Accessed 8 Dec 2019.

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What Does the First Amendment Say About Displaying Religious Symbols?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

—First Amendment, U.S. Constitution

Is bringing religious symbols into public school classrooms ever OK? Many educators struggle with this question, afraid of tripping over the lines that protect our freedom of religion and separate church and state. We know the courts have interpreted the Establishment Clause of the First Amendment to mean that public schools cannot promote religious or antireligious beliefs, yet we know that teachers can teach about religion as long as (a) the content is tied to academic objectives and (b) teachers do not attempt to indoctrinate students to a certain religious belief or nonbelief. But does that answer the question about religious symbols?

Use symbols as instructional aids, not as permanent display or decoration.

While still contested in some areas, permanent displays of religious symbols on public school property violate current interpretations of the Establishment Clause. The Ten Commandments, for example, are unarguably religious in nature. Their permanent display in public schools communicates an endorsement for Christianity—just as hanging a Star of David in a classroom could make it appear that the school favors Judaism.  

The Ten Commandments could, however, be temporarily displayed in a comparative literature classroom as an instructional aid in a lesson on the Bible as a literary source for other works.  Instructional aids, in this context, are objects referenced during instruction to help students understand a particular religious heritage. Another example might be a Muslim prayer rug to illustrate the Islamic practice of Salah, or a poster about the Crusades in a history classroom depicting people holding crosses.

The question of “display” versus instructional use can be especially complex in art and music classes. Religious music and art can be included as part of classroom instruction, but it is the teacher’s responsibility to make the connection to academic content clear, to refrain from and confront any form of proselyting or denigration of the religion or the adherents of that religion, and to include art representing multiple religious and secular worldviews. 

Think carefully when decorating for winter holidays.

Consider the Christmas tree. The Supreme Court has held that the Christmas tree is a secular symbol of the holiday season; therefore, the display of a Christmas tree in the school lobby, temporarily, does not violate the Establishment Clause. A Hanukkah menorah has also been determined to be a secular symbol and does not violate the Establishment Clause when displayed temporarily.

Even so, public schools should exercise caution in choosing to put out these symbols. Despite the Supreme Court ruling, many students and families associate them with religions and religious holidays that not all members of the school community observe or celebrate. Their display could marginalize non-Christian and non-Jewish students and be counter-productive to the positive school climate we work to establish. 

Make sure your teaching reflects your classroom diversity.

Students may still feel left out, even if you teach about religion within legal parameters and use religious symbols appropriately. When learning about comparative religions, does your Buddhist student see herself in the instruction and class objectives as clearly as her Pentecostal classmate does? (Practices outlined in Teaching Tolerance’s Critical Practices for Anti-bias Education can help teachers create classroom environments that reflect diversity and support students’ religious identities.)

The Establishment Clause and the Free Exercise Clause of the First Amendment are often referred to as the Constitution’s “religion clauses” and—in certain scenarios—may seem to contradict each other. For example, does displaying student artwork that includes a religious symbol in a common area of the school violate the Establishment Clause? If the teacher covers over the religious symbol on the student’s work, is the student being denied his right to free exercise? 

Educators have the responsibility to strike a balance between the two clauses, remaining within the legal parameters for honoring students’ right to free expression while avoiding messages or displays that favor one religion over another or that favor religion over non-religion. In this case, that balance could be achieved by clearly labeling the work as student art, communicating that the contents of the display are not the views of the school while honoring the religious identity of the student. 

Teaching about religion and referencing religion when teaching other academic subjects presents many fine lines educators must maneuver—but they’re important and necessary lines to navigate. Teaching Tolerance and the Tanenbaum Center for Interreligious Understanding can help. We’ve teamed up to bring educators a series of five webinars about religious diversity in the classroom. The first webinar in the series, What’s law got to do with it? (and the accompanying after-session pack), provided instructional tools and strategies to ensure teaching about religion is constitutionally sound and academically responsible. Visit the links below to see blogs on the other commonly asked questions about religion and public schools.

• What does religious content look like in an academic setting?  
• What is the difference between a moment of silence and quiet reflection?

Wicht is the senior manager for teaching and learning at Teaching Tolerance. 

• Student sensitivity.

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First Amendment – Freedom of Speech

The First Amendment allows citizens to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas even if the ideas are unpopular. Freedom of speech encompasses not only the spoken and written word, but also all kinds of expression (including non-verbal communications, such as sit-ins, art, photographs, films and advertisements).

1735 Truth Is A Defense Against Libel Charge

New York printer John Peter Zenger is tried on charges of seditious libel for publishing criticism of the royal governor. English law – asserting that the greater the truth, the greater the libel – prohibits any published criticism of the government that would incite public dissatisfaction with it. Zenger’s lawyer, Andrew Hamilton, convinces the jury that Zenger should be acquitted because the articles were, in fact, true, and that New York libel law should not be the same as English law. The Zenger case is a landmark in the development of protection of freedom of speech and the press.

1787 Federalist Papers’ Publication Starts

The first of 85 essays written under the pen name Publius by Alexander Hamilton, James Madison and John Jay begin to appear in the New York Independent Journal. The essays, called the Federalist Papers, support ratification of the Constitution approved by the Constitutional Convention on Sept. 17, 1787. In Federalist Paper No. 84, Hamilton discusses “liberty of the press.”

1791 First Amendment Is Ratified

The First Amendment is ratified when Virginia becomes the 11th state to approve the first 10 amendments to the Constitution, known as the Bill of Rights. The amendment, drafted primarily by James Madison, guarantees basic freedoms for citizens: freedom of speech, press, religion, assembly and petition.

1798 Alien And Sedition Acts Signed Into Law

While the nation’s leaders believe an outspoken press was justified during the war for independence, they take a different view when they are in power. The Federalist-controlled Congress passes the Alien and Sedition Acts. Aimed at quashing criticism of Federalists, the Sedition Act makes it illegal for anyone to express “any false, scandalous and malicious writing” against Congress or the president.

The United States is in an undeclared war with France, and Federalists say the law is necessary to protect the nation from attacks and to protect the government from false and malicious words. Republicans argue for a free flow of information and the right to publicly examine officials’ conduct.

1836 Efforts To Stifle Debate About Slavery Unsuccessful

As abolitionists develop the tactic of submitting many antislavery petitions to Congress, proslavery members of the U.S. House of Representatives adopt “gag” rules that bar such petitions from being introduced and debated. In 1844, former President John Quincy Adams, then a representative from Massachusetts, leads the effort to repeal these rules.

1859 ‘On Liberty’ Is Published

British philosopher John Stuart Mill publishes the essay On Liberty , arguing that only through the free exchange of ideas, even offensive ones or ones held by a minority of individuals, can society find “truth.”

1864 Lincoln Orders Two Newspapers Shut

President Abraham Lincoln orders Union Gen. John Dix to stop publication of the New York Journal of Commerce and the New York World after they publish a forged presidential proclamation calling for another military draft. The editors also are arrested. After the authors of the forgery are arrested, the newspapers are allowed to resume publication.

1873 Circulation Of Birth Control Information Outlawed

An “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” is passed by Congress. The act, more commonly known as the Comstock Act – after anti-obscenity activist Anthony Comstock – makes it a crime to publish, distribute or possess information about contraception or abortion, or to distribute or possess devices or medications used for those purposes.

Lawmakers were responding to increasing concern about abortion, the institution of marriage, and the changing role of women in society.

1917 Congress Passes Espionage Act Of 1917

With World War I being fought, President Woodrow Wilson proposes the Espionage Act of 1917 to protect the country from internal warfare propaganda. Congress passes the act, which makes it a crime to intentionally interfere with military forces, recruiting or enlistment or “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States.” Punishment is a maximum fine of $10,000, a maximum jail term of 20 years, or both. The act also bans any mailings urging treason.

1918 Sedition Act Of 1918 Punishes Critics Of WWI

An amendment to the Espionage Act of 1917, the Sedition Act is passed by Congress. It goes much further than its predecessor, imposing severe criminal penalties on all forms of expression that are critical of the government, its symbols, or its mobilization of resources for World War I. Ultimately, about 900 people will be convicted under the law. Hundreds of noncitizens will be deported without a trial; 249 of them, including anarchist Emma Goldman, will be sent to the Soviet Union.

1919 ‘Clear And Present Danger’ Exception Established

In Schenck v. United States , the U.S. Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upholds the conviction of Socialist Charles Schenck for conspiracy to violate the Espionage Act by attempting to distribute thousands of antiwar leaflets to U.S. servicemen. While acknowledging that the First Amendment under normal circumstances might protect Schenck’s activities, the Court holds that in special circumstances, such as wartime, speech that poses a “clear and present danger” can be restricted. The Court likens the ideas expressed in Schenck’s leaflets to “falsely shouting fire in a theatre and causing a panic.”

A few days later, in another opinion by Holmes, the Court will uphold Socialist Eugene V. Debs’ conviction, finding that his speech also poses a “clear and present danger” of undermining war recruitment and is not protected by the First Amendment.

1919 ‘Marketplace Of Ideas’ Concept Defined

In his dissent from the majority opinion in Abrams v. United States (upholding the Espionage Act convictions of a group of antiwar activists), U.S. Supreme Court Justice Oliver Wendell Holmes coins his famous “marketplace of ideas” phrase to explain the value of freedom of speech. He said that “the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Over the years, Holmes’ “marketplace” concept, and the idea that more is better when it comes to competing ideas, has been a consistent theme in First Amendment cases.

1925 Court: First Amendment Applies To States’ Laws

In Gitlow v. New York , the U.S. Supreme Court concludes that the free speech clause of the First Amendment applies not just to laws passed by Congress, but also to those passed by the states.

1926 Mencken Arrested For ‘Indecent Literature’

H.L. Mencken is arrested in Boston for distributing copies of his American Mercury magazine, which contains a story with a prostitute as a central character. Censorship groups in Boston say the magazine is obscene and order Mencken’s arrest for selling “indecent literature.”

1927 Criminal Syndicalism Law Constitutional

In Whitney v. California , the U.S. Supreme Court rules that California’s criminal syndicalism law is constitutional. A member of the state’s Communist Labor Party was prosecuted under the law, which barred advocating, teaching or aiding the commission of a crime, including “terrorism” as a way to achieve change in industrial ownership or political change. The Court says that freedom of speech is not an absolute right.

1931 Court: Symbolic Expression Of Ideas Also Protected

In Stromberg v. California , the U.S. Supreme Court invalidates the state court conviction of a 19-year-old member of the Young Communist League for displaying a red flag as “an emblem of opposition to the United States government.” The Court rules that the woman’s nonverbal, symbolic expression of her antigovernment opinions is protected just as are any words that she might write or speak to express those opinions.

1931 Prior Restraint Ruled Unconstitutional

Near v. Minnesota is the first U.S. Supreme Court decision to invoke the First Amendment’s press clause. A Minnesota law prohibited the publication of “malicious, scandalous, and defamatory” newspapers. It was aimed at the Saturday Press, which had run a series of articles about corrupt practices by local politicians and business leaders. The justices rule that prior restraints against publication violate the First Amendment, meaning that once the press possesses information that it deems newsworthy, the government can seldom prevent its publication. The Court also says the protection is not absolute, suggesting that information during wartime or obscenity or incitement to acts of violence may be restricted.

1937 Court: First Amendment Protects ‘Peaceable Assembly’

In De Jonge v. Oregon , the U.S. Supreme Court overturns the conviction of Dirk De Jonge for participating in a Communist Party political meeting, holding that “peaceable assembly for lawful discussion cannot be made a crime.” That right, the Court finds, is not dependent upon whether one agrees with the ideas being discussed by the people assembled.

1940 Ban On Religious Solicitation Struck Down

In Cantwell v. Connecticut , the U.S. Supreme Court holds that two Jehovah Witnesses’ rights of free speech and free exercise of religion were violated when they were arrested for proselytizing in a Catholic neighborhood. The Court says the solicitation law, which allows a state official to refuse a permit based on religious grounds, is unconstitutional. The Court also overturns a breach of peace conviction, saying the pair’s message was protected religious speech. The case is the first to extend the free exercise of religion clause to the states and to establish the ‘time, manner and place’ rule, which says the state can regulate the free exercise right to ensure it is practiced in a reasonable time, manner and place.

1940 Flag Salute Requirement Is Upheld

In Minersville School District v. Gobitis , the U.S. Supreme Court upholds a Pennsylvania flag-salute law after a challenge by a Jehovah’s Witness family whose two children were expelled for refusing to salute the flag. They believe the salute is forbidden by biblical commands. The Court says the flag is a symbol of national unity, which is the “basis of national security.”

1942 ‘Fighting Words’ Exception Established

In Chaplinsky v. New Hampshire , the U.S. Supreme Court upholds the conviction of a Jehovah’s Witness who had called a police officer a “damned fascist.” The Court rules that there are certain words that “by their very utterance inflict injury” and are of “such slight social value” that they are not welcome in the marketplace of ideas. This category of speech, named “fighting words” by the Court, is not protected by the First Amendment. Consequently, the speaker may be prosecuted.

1943 Court: Required Flag Salute Violates First Amendment

In West Virginia State Board of Education v. Barnette , the U.S. Supreme Court overrules its decision in Minersville School District v. Gobitis and decides that a West Virginia law requiring students to salute the American flag violates the free speech clause of the First Amendment. “Compulsory unification of opinion,” the Court says, is “antithetical to First Amendment values.”

1947 Hatch Act Upheld; Dissent Says It Violates 17th Amendment

In United Public Workers v. Mitchell , the U.S. Supreme Court finds that the Hatch Act, a federal law that prohibits federal employees from participating in many electoral activities does not violate the First Amendment. In a strong dissent, Justice Hugo Black argues that the law muzzles several million citizens and threatens popular government, because it deprives citizens of the right to participate in the political process.

Such limitations, he argues, would be inconsistent with the First Amendment’s guarantee of freedom of speech, press, assembly and petition. Moreover, Black finds that the Hatch Act would violate, or come dangerously close to violating, Article I and the 17th Amendment, which protect the right of the people to vote for their representatives in the House and Senate and to have their votes counted.

1949 Scope Of ‘Fighting Words’ Doctrine Limited

In Terminiello v. Chicago , the U.S. Supreme Court overturns the conviction of Father Arthur Terminiello for disturbing the peace. He was convicted after giving a controversial speech that criticized various racial and political groups. Several disturbances by protesters occurred after the speech. The Court says “fighting words” can be restricted only when they are “likely to produce a clear and present danger.” Justice William O. Douglas writes that free speech may “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

1952 Justices Uphold Group Libel Law

In Beauharnais v. Illinois , the U.S. Supreme Court upholds the conviction of a white supremacist for passing out leaflets that characterized African Americans as dangerous criminals. The “group libel” law under which Joseph Beauharnais was prosecuted makes it a crime to make false statements about people of a particular “race, color, creed or religion” for no other reason than to harm that group. The Court rules that libel against groups, like libel against individuals, has no place in the marketplace of ideas.

1957 Obscenity Exception To First Amendment Established

In Roth v. United States , the U.S. Supreme Court decides that it is not a violation of the First Amendment for the government to regulate, or even criminalize, speech that is “obscene,” because, just like libel and “fighting words,” obscene speech is “utterly without redeeming social importance.” The Court says that in defining obscenity, the government must consider “contemporary community standards.” What was “obscene” 50 years ago may not be in today’s society.

1958 Court Protects ‘Free Association’ In NAACP Case

In NAACP v. Alabama , the U.S. Supreme Court holds that when Alabama state officials demanded that the NAACP hand over its membership list, the members’ right of “free association” was violated. Although no such right is specifically included in the First Amendment, the Court says it is a necessary extension of the rights to free speech and free assembly: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the due process clause of the 14th Amendment, which embraces freedom of speech.”

1959 No Protection From Congressional Inquiry

The U.S. Supreme Court finds professor Lloyd Barenblatt’s First Amendment rights were not violated when he was convicted of contempt of Congress for refusing to answer questions about his religious and political beliefs before the House Un-American Activities Committee. In Barenblatt v. United States , the Court says that such questions are legitimate when the investigation’s goal is to “aid the legislative process” and to protect important government interests.

1961 Symbolic Speech Of Civil Rights Protesters Protected

In Garner v. Louisiana , the U.S. Supreme Court overturns the convictions of 16 African American demonstrators for disturbing the peace in three lunch counter sit-ins at all-white restaurants in Baton Rouge, La., to protest segregation. The cases were consolidated under Garner v. Louisiana. Referring to earlier court opinions protecting symbolic speech, Justice John Harlan explains that a sit-in demonstration “is as much a part of the free trade of ideas as is verbal expression.”

1964 Court Establishes ‘Actual Malice’ Standard

In New York Times Co. v. Sullivan , the U.S. Supreme Court establishes the “actual malice” standard when it reverses a civil libel judgment against the New York Times. The newspaper was sued for libel by Montgomery, Ala.’s police commissioner after it published a full-page ad that criticized anti-civil rights activities in Montgomery. The court rules that debate about public issues and officials is central to the First Amendment. Consequently, public officials cannot sue for libel unless they prove that a statement was made with “actual malice,” meaning it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

1966 Loyalty Oath Is Struck Down

In Elfbrandt v. Russell , the U.S. Supreme Court invalidates an Arizona law requiring state employees to take a loyalty oath. Anyone who took the oath and then became a member of the Communist Party or any other group that advocated the violent overthrow of the government could be prosecuted for perjury and fired. The Court says the law violates the due process clause by infringing on the right of free association. The Court holds that the law is too broad by punishing a person who joins a group that has both legal and illegal purposes but does not subscribe to the illegal purpose.

1966 Smith Act Is Found Constitutional

In Dennis v. United States , the U.S. Supreme Court upholds the convictions of 12 Communist Party leaders who were convicted under the Smith Act of 1940, formally known as the Alien Registration Act. The law makes it illegal to teach or advocate the overthrow or destruction of the U.S. government, or publish any materials or organize a group that endorses such action. The majority writes that the “existence of the conspiracy” creates “a clear and present danger.”

1968 Limits Placed On Symbolic Speech Right

In United States v. O’Brien , the U.S. Supreme Court lets stand the conviction of an activist who burned his draft card to protest the Vietnam War. Although the Court admits that the law against destroying a draft card does limit speech, it rules that the limit is acceptable because it serves an important government interest (i.e., the smooth operation of the draft during wartime) and is “content-neutral,” meaning that it is not meant to punish any particular point of view or opinion.

1968 Teacher’s Free Speech Right Upheld

The U.S. Supreme Court decides that a public school teacher’s free speech right was violated when he was fired for writing a letter to the newspaper criticizing how money was divided between athletics and academics. The justices say in Pickering v. Board of Education that public school teachers are entitled to some First Amendment protection and that the teacher was speaking out more as a citizen than as a public employee when he wrote the letter.

1969 Students’ Right To Symbolic Speech Upheld

In Tinker v. Des Moines Independent Community School District , the U.S. Supreme Court rules that the school board was wrong to suspend three students who wore black armbands to school to protest the Vietnam War. The Court finds that the students’ passive protest posed no risk of disrupting school activities. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court’s opinion says.

1969 Private Ownership Of Obscene Material Protected

In Stanley v. Georgia , the U.S. Supreme Court finds unconstitutional a Georgia obscenity law that prohibits the possession of such material. The Court rules that the Constitution “protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one’s privacy and control of one’s thoughts.”

1969 Advocacy Of Violence Is Protected Speech Except In Rare Circumstances

In Brandenburg v. Ohio , the U.S. Supreme Court reverses the conviction of a Ku Klux Klan leader under an Ohio law prohibiting speech that calls for crime or violence as a way of winning political change. The Court holds that unless the speaker incites his listeners to “imminent lawless action,” the speech is protected by the First Amendment.

1971 Antiwar Expression Is Ruled Protected Speech

In Cohen v. California , the U.S. Supreme Court overturns the conviction of a man convicted of disturbing the peace for wearing a jacket bearing a vulgarism about the draft. The Court concludes that the expression, however crude, did not pose enough of a risk of inciting disobedience to override his First Amendment right to express his opposition to the Vietnam War.

1971 Newspapers Win Pentagon Papers Case

The New York Times and the Washington Post obtain secret Defense Department documents that detail U.S. involvement in Vietnam in the years leading up to the Vietnam War. Citing national security, the U.S. government gets temporary restraining orders to halt publication of the documents, known as the Pentagon Papers. But, acting with unusual haste, the U.S. Supreme Court finds in New York Times v. United States that prior restraint on the documents’ publication violates the First Amendment. National security concerns are too speculative to overcome the “heavy presumption” in favor of the First Amendment’s guarantee of freedom of the press, the Court says.

1972 Court: No Reporter’s Privilege Before Grand Juries

Branzburg v. Hayes is a landmark decision in which the U.S. Supreme Court rejects First Amendment protection for reporters called before a grand jury to reveal confidential information or sources. Reporters argued that if they were forced to identify their sources, their informants would be reluctant to provide information in the future. The Court decides reporters are obliged to cooperate with grand juries just as average citizens are. The justices do allow a small exception for grand jury investigations that are not conducted or initiated in good faith.

1973 Court: States Can Regulate Obscene Exhibits

In Paris Adult Theatre I v. Slaton , the U.S. Supreme Court upholds a Georgia injunction against the showing of allegedly obscene films at an adult movie theater that allowed only patrons at least 21 years old. The Court finds that “legitimate state interests,” such as preserving quality of life and public safety, are at stake in regulating commercialized obscenity even if the exhibits are limited to consenting adults.

1973 Definition Of Obscenity Is Clarified

In Miller v. California , the U.S. Supreme Court establishes a new definition of obscenity, setting out a three-part test for judging whether material is obscene: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

1976 Money Spent In Political Campaigns Considered Speech

When Congress tries to limit expenditures in political campaigns, the U.S. Supreme Court, in Buckley v. Valeo , invalidates provisions that restrict candidates’ ability to spend their own money on a campaign, limit campaign expenditures by an outside group, and limit total campaign spending. The Court compares spending restrictions with restrictions on “political speech.” The majority reasons that discussion of public issues and political candidates are integral to the U.S. political system under the Constitution. The Court says government-imposed limits on the amount of money a person or group can spend on political communication reduces “the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”

1976 Justices Protect Commercial Speech

In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , the U.S. Supreme Court strikes down a state law that forbids pharmacists from including the prices of prescription drugs in their ads because it is unprofessional conduct. Although such information does not convey an idea other than proposing that a purchase be made, the Court finds that commercial speech enjoys the same First Amendment protection as noncommercial speech.

1977 Court Allows Publication Of Juvenile’s Identity

In Oklahoma Publishing Company v. District Court , the U.S. Supreme Court finds that when a newspaper obtains the name and photograph of a juvenile involved in a juvenile court proceeding, it is unconstitutional to prevent publication of the information, even though the juvenile has a right to confidentiality in such proceedings. A similar ruling will be made by the court two years later, in Smith v. Daily Mail Publishing Company , when the Court finds that a newspaper’s First Amendment right takes precedence over a juvenile’s right to anonymity.

1978 Nazis Permitted To March In Skokie, Ill.

The 7th U.S. Circuit Court of Appeals invalidates a city law passed in Skokie, Ill., home to 5,000 Holocaust survivors, to prevent a neo-Nazi group from holding a march there. The Court rules in Collin v. Smith that the group should be permitted to march in their uniforms, distribute anti-Semitic leaflets and display swastikas. The court does not deny the group’s symbols are offensive to many observers, but concludes that “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The U.S. Supreme Court will refuse to review the case.

1978 FCC Can Regulate Indecent Speech

The U.S. Supreme Court, in FCC v. Pacifica Foundation , allows the Federal Communications Commission to regulate indecent speech broadcast over the air. The Court says the FCC can channel broadcasts that contain indecent language to late-night hours, when children are less likely to be listening.

1980 Court Establishes Commercial Speech Test

In Central Hudson Gas & Electric Corp. v. Public Service Commission , the U.S. Supreme Court decides that a state ban on promotional advertising by the electric utility is unconstitutional. The ruling sets up a four-part test to decide when commercial speech can or cannot be regulated: (1) It must not be misleading or involve illegal activity (2) The government interest advanced by the regulation must be significant (3) The regulation must directly advance the government interest (4) The regulation must be limited to serving the asserted government interest.

1982 School Board Cannot Ban Library Books

In Board of Education v. Pico , the U.S. Supreme Court rules that a school board’s decision to remove books from the school library based simply on their content violates the First Amendment’s free speech right. The Court says the First Amendment protects the right to receive information and ideas. The justices allow that books that are “pervasively vulgar” or educationally unsuitable can be removed.

1982 Justices Rule Child Porn Not Protected

In New York v. Ferber , the U.S. Supreme Court holds that the First Amendment does not protect child pornography. Child pornography joins certain categories of speech – libel, “fighting words,” words that present a “clear and present danger” of violence, and obscene material – that are considered to have such negative consequences that it is acceptable for the government to restrict them.

1983 Public Employees’ Free Speech Right Defined

In Connick v. Myers , a landmark free-speech ruling for public employees, the U.S. Supreme Court says that an assistant district attorney’s free speech right was not violated when she was fired for distributing a questionnaire about internal office practices to fellow prosecutors. At least one of Myers’ questions related to a matter of public concern: whether assistant prosecutors felt pressured to work in political campaigns. But, relying on its 1968 Pickering ruling, the Court decides that the employer’s interest in a disruption-free workplace outweighs the employee’s right to comment on an issue of public concern.

1985 Anti-Pornography Law Is Struck Down

In American Booksellers Association v. Hudnut , the 7th U.S. Circuit Court of Appeals strikes down an Indianapolis anti-pornography law. The law had not used the court’s guidelines for deciding what is “obscene” material. The court finds that the law unconstitutionally targeted a certain viewpoint and allowed the government to decide which ideas are good or bad.

1986 Court: Student’s Lewd Speech Not Protected

In Bethel School District v. Fraser , the U.S. Supreme Court decides that a high school senior’s free speech right was not violated when he was disciplined for making a lewd speech at an assembly. Previously, in Tinker v. Des Moines Independent Community School District , the justices had said students do not “shed their constitutional rights” at the schoolhouse door. Chief Justice Warren E. Burger writes that schools can prohibit lewd speech because it is inconsistent with the “fundamental values of public school education.”

1988 Court Allows Censorship Of School Publications

In Hazelwood School District v. Kuhlmeier , the U.S. Supreme Court rules that public school administrators can censor speech by students in publications (or activities) that are funded by the school – such as a yearbook, newspaper, play, or art exhibit – if they have a valid educational reason for doing so.

1989 Court: Flag Burning Is Protected Symbolic Speech

In Texas v. Johnson , the U.S. Supreme Court rules that burning an American flag is protected symbolic speech. Gregory Lee Johnson burned the flag outside Dallas City Hall to protest Reagan administration policies. The justices find that his actions fall into the category of expressive conduct and have a political nature. Speech cannot be prohibited simply because an audience takes offense to certain ideas, the Court says.

1990 Flag Protection Act Ruled Unconstitutional

In U.S. v. Eichman , the U.S. Supreme Court decides that the 1989 Flag Protection Act is unconstitutional. The law provided penalties of up to one year in jail and a $1,000 fine for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or ground, or tramples upon” any U.S. flag. The justices rule that the right to free expression supersedes protection of the flag as a national symbol. Justice William J. Brennan writes: “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”

1991 Media Coverage Limited In Gulf War

The Pentagon imposes rules for media coverage of the war in the Persian Gulf, citing the possibility that some news – including information on downed aircrafts, specific troop numbers, and names of operations – may endanger lives or jeopardize U.S. military strategy. Nine news organizations file a lawsuit questioning the constitutionality of limiting media access to the battleground. But a court rules the question moot when the war ends before the case is decided.

1991 Son Of Sam Law Is Struck Down

The U.S. Supreme Court strikes down New York’s Son of Sam law aimed at preventing convicted criminals or those accused of crimes from profiting from the sale of any work discussing their crimes. In Simon & Schuster Inc. v. New York State Crime Victims Board , the Court says the law violates the First Amendment because it singles out earnings from speech or writing.

1992 Court Strikes Down Hate Crime Law

In R.A.V. v. The City of St. Paul , the U.S. Supreme Court reverses the juvenile conviction of a 14-year-old white boy who burned a cross on the lawn of an African American family. The boy was prosecuted under a law prohibiting the placement of certain symbols that were “likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender.” The Court finds that because the law punishes certain conduct only because of the ideas behind it – however offensive those ideas may be – it violates the First Amendment’s free speech clause.

1993 Justices Allow Tougher Hate Crime Penalties

In Wisconsin v. Mitchell , the U.S. Supreme Court upholds a Wisconsin law that increases the penalty for assault if the offender purposely picks his victim “because of the race, religion, color, disability, sexual orientation or national origin or ancestry of that person.” The Court rules that the increased penalty does not violate the offender’s free speech rights because the Wisconsin law is aimed at the offender’s actions.

1994 Justices Uphold Buffer Zones At Abortion Clinics

In Madsen v. Women’s Health Center , the U.S. Supreme Court affirms a Florida court’s ruling that abortion protesters could not demonstrate within 36 feet of an abortion clinic, make loud noises within earshot of the clinic, or make loud noises within 300 feet of a clinic employee’s home. (These distance requirements are known as buffer zones.) Although the Court acknowledges that the ruling restricts the protesters’ speech, it finds the restrictions “necessary to serve a significant government interest” of providing needed health care.

1995 Communications Decency Act Passed

As part of the Telecommunications Act of 1996, Congress enacts the Communications Decency Act. The law is intended primarily to protect minors using the internet by criminalizing the placement of “obscene” and “patently offensive” material on the Web. The Communications Decency Act is almost immediately challenged by a diverse coalition of health-care providers, sex educators and pornographers on the grounds that the law violates the right to free speech.

1996 Child Pornography Prevention Act Passed

The Child Pornography Prevention Act expands the definition of child pornography – which, unlike most pornography involving adult subjects, does not enjoy First Amendment protection and can be criminalized – to include computer-generated depictions of children engaging in sexual activity. The act is challenged on First Amendment grounds by a variety of civil liberties and artistic groups.

1997 ‘Floating’ Buffer Zones At Clinics Struck Down

In Schenck v. Pro-Choice Network of Western New York , the U.S. Supreme Court upholds a 15-foot buffer zone around an abortion clinic’s entrances and driveways, but strikes down a “floating” buffer zone that requires protesters to stay 15 feet away from all cars and patients as they enter and exit the clinic. The Court finds that, in contrast to the “fixed” buffer zone around the clinic, the “floating” zone risks silencing protesters: “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.”

1997 Equal Access For Military Recruiters Is Upheld

The Solomon Amendment requires institutions of higher education to provide military recruiters with the same access to students as other potential employers. If the school does not, it loses certain federal funds. Members of an association of law schools and law faculties wanted to restrict military recruiting because they objected to the military’s policy on LGBT+ recruits. The U.S. Supreme Court unanimously says that the Solomon Amendment does not place an unconstitutional condition on the receipt of federal funds. The Court says the First Amendment does not prevent Congress from directly imposing the equal access requirement because the Solomon Amendment limits conduct, not speech.

1997 Court Ruling Backs Free Speech On Internet

In Reno v. American Civil Liberties Union , the U.S. Supreme Court gives broad support to free speech on the Internet. The justices rule that the Communications Decency Act violates the First Amendment by criminalizing many kinds of material on the internet that are not obscene or offensive, such as medical information or artistic depictions of the human body.

1998 Court: Public TV Can Exclude Candidates

The U.S. Supreme Court decides that public television stations can exclude minor-party candidates from their debates as long as the decision is not based on the candidates’ views and the debates are not designed as public forums. The decision, in Arkansas Educational Television Commission v. Forbes , strikes down an appeals court ruling that a state-owned TV network is obliged under the First Amendment to allow any candidate who has qualified for the ballot access to a debate.

1998 Decency Test On Arts Grants Is Upheld

In National Endowment for the Arts v. Finley , the U.S. Supreme Court rules that the NEA, the government’s art-funding agency, can include “decency” standards among its criteria for awarding government grants for artists’ work without violating the First Amendment.

1999 Giuliani Targets Publicly Funded Art

Infuriated by a planned exhibit at the Brooklyn Museum of Art that features an image of the Virgin Mary decorated with elephant dung, New York City Mayor Rudy Giuliani threatens to cut all city funding to the museum, evict the museum from its building, and remove the Board of Directors. A subsequent First Amendment lawsuit between the museum and the city will be settled the following year, with the city agreeing to pay an additional $5.8 million in repairs to the museum over the next two years.

2000 Boy Scouts Can Bar LGBT+ Leaders

In Boy Scouts of America v. Dale , the U.S. Supreme Court says the Boy Scouts organization has the right to bar gay people from serving as troop leaders. Assistant scoutmaster James Dale contended that the Boy Scouts had violated a New Jersey statute banning discrimination on the basis of sexual orientation in places of public accommodation. The justices said the law violated the Boy Scouts’ First Amendment right to expressive association.

2000 Court Revisits ‘Floating’ Buffer Zones At Clinics

In Hill v. Colorado , the U.S. Supreme Court upholds a Colorado law that prohibits abortion protesters from “knowingly approaching” within eight feet of a person entering or exiting an abortion clinic. The Court says that, unlike the “floating” 15-foot buffer zone that it struck down in Schenck , the buffer zone in the Colorado law is small, so protesters are still able to exercise their free speech right.

2000 Children’s Internet Protection Act Passed

Congress passes the Children’s Internet Protection Act. The law requires public libraries that receive certain federal funds to use a portion of those funds to buy internet programs for their computer terminals to filter out material that is “harmful to minors.” The American Library Association and the ACLU both bring lawsuits challenging the law on First Amendment grounds.

2002 Ban On ‘Virtual’ Child Porn Struck Down

In Ashcroft v. Free Speech Coalition , the U.S. Supreme Court rules that the Child Pornography Prevention Act’s criminalization of computer-generated depictions of children engaging in sexual activity violates the First Amendment. The Court finds that the law goes further than existing child pornography laws (which ban material involving actual children) to potentially cover many kinds of images that are not pornographic.

2003 Law To Protect Children Passed

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act, or the PROTECT Act, includes numerous provisions intended to protect children from exploitation, kidnapping, and other crimes. It increases penalties for creating child pornography and strengthens penalties for “virtual” child pornography. Modern technology makes it easier for individuals to produce child pornography without involving “real” children. This law takes steps to prevent that practice. The law also encourages increased cooperation of internet service providers to report suspected child pornography.

2003 Court Rules On Cross-Burning Law

In Virginia v. Black , the U.S. Supreme Court rules that a law prohibiting cross burning could, in theory, be allowed under the First Amendment if it targets only cross burnings that are specifically “intended to intimidate.” Nevertheless, the Court strikes down the Virginia law because it outlaws all cross burnings, including those intended to express a political view.

2003 Law On Library Internet Filters Upheld

In United States v. American Library Association , the U.S. Supreme Court rules that the Children’s Internet Protection Act (CIPA) of 2000, requiring public libraries that receive certain federal funds to buy internet filters for their computers to weed out material that is “harmful to minors,” does not violate the First Amendment. The Court says that Congress has broad authority to attach restrictions to its funding, and that the CIPA restrictions are consistent with library rules that limit children’s access to only age-appropriate materials. The Court says that libraries are allowed to disable the “blocking” software for adults.

2003 Justices Uphold Campaign Finance Law

The Bipartisan Campaign Finance Reform Act of 2002, known as the McCain-Feingold Bill, is an effort to change the way money is raised and spent by political campaigns. Key parts are a ban on unrestricted (“soft money”) donations to political parties (often by corporations and unions) and restrictions on TV ads sponsored by unions, corporations and nonprofit groups up to 60 days before elections. The plaintiffs, including unlikely allies such as the National Rifle Association and the ACLU, say these provisions violate their rights to free speech and association. The U.S. Supreme Court upholds the provisions, finding that they are justified by the government’s interest in preventing corruption or the appearance of corruption that might result.

2004 Child Online Protection Act Struck Down

After the Child Online Protection Act became law, the ACLU sued to stop its enforcement, saying the law violated the right to free speech. The U.S. District Court and the Third U.S. Circuit Court of Appeals both agree with the ACLU. In 2002, however, the U.S. Supreme Court orders the Third Circuit to reevaluate the case, saying the decision was based on insufficient reasoning.

In 2003, the appeals court again finds the law unconstitutional, based on different grounds from the first ruling. The justices agree to rehear the case and, in Ashcroft v. American Civil Liberties Union , strike down the law. Justice Anthony Kennedy writes that children can be protected from inappropriate material by other, less restrictive ways and that the law could prevent adults from accessing information they have a right to view.

2004 Patriot Act Provision Ruled Unconstitutional

A federal judge for the Southern District of New York rules unconstitutional a Patriot Act provision that allows the FBI to demand information about internet users but does not hold the FBI subject to public review or judicial oversight for its actions. The provision also forbids internet service providers from revealing that such information has been requested. Judge Victor Marrero rules that this provision violates the free speech right by prohibiting internet service providers from ever speaking about such FBI requests.

2006 Court Rejects Vermont Campaign Finance Law

Vermont’s Act 64 stringently limits the amounts that candidates for state office may spend on their campaigns and the amounts that individuals, organizations, and political parties may contribute. In Randall v. Sorrell , the U.S. Supreme Court reaffirms its 1976 ruling in Buckley v. Valeo that rejected limits on how much candidates could spend on their own campaigns. Regarding Vermont’s contribution limits, the Court says they are so low that they pose a constitutional risk to the electoral process. Challengers may be unable to mount an effective challenge to better-financed incumbents.

2007 Court Strikes Down Ad Limits In Campaign Law

The U.S. Supreme Court creates an exemption to advertisement restrictions set out in the 2002 McCain-Feingold campaign finance law. In Federal Election Commission v. Wisconsin Right to Life , Chief Justice John G. Roberts Jr. writes that only ads that make specific appeals to vote for or against a candidate can be prohibited in the period covered by the law – 30 days before a primary election and 60 days before a general election. The Court says limits on TV ads sponsored by corporations or unions in that period amount to censorship of political speech, which is protected under the First Amendment.

2007 Justices Restrict Students’ Free Speech Right

In Morse v. Frederick , the U.S. Supreme Court affirms that free speech rights for public school students are not as extensive as those for adults. In this case, a student held up a banner with the message “Bong Hits 4 Jesus,” a slang reference to marijuana use, at a school-supervised event across from the campus. The principal removed the banner and suspended the student for 10 days. The majority opinion says that although students have some right to political speech, it does not include pro-drug messages that may undermine the school’s mission to educate against illegal drug use.

2009 City’s Refusal Of Religious Monument Upheld

The U.S. Supreme Court decides unanimously in Pleasant Grove City v. Summum that a Utah city did not violate the Summum church’s free speech right by refusing a donation of a monument reflecting its beliefs. The church argued that the park, which had a Ten Commandments monument, was a public forum and that the city could not discriminate among speakers. The Court said permanent monuments were government speech and did not have the same free speech protection as speakers or leaflets in a public forum.

2010 Court Lifts Limits On Corporate Election Spending

In Citizens United v. FEC , the U.S. Supreme Court rules, 5-4, to remove limits on corporate spending on elections. Corporations and unions still cannot directly give money to federal candidates or national party committees. The majority opinion says the First Amendment right of free speech extended to corporations. The landmark decision overturns decades of rules that governed the campaign finance and sparked fears that a flood of money into politics would dramatically alter campaigns.

2010 Corporate Spending Limit Rejected

The U.S. Supreme Court decides, 5-4, in Citizens United v. Federal Election Commission , that the government cannot regulate political speech — political spending — by corporations in elections. “If the First Amendment has any force,” Justice Anthony M. Kennedy writes for the majority, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The dissenters warn of the consequences if a flood of corporate money is unleashed in elections. Justice John Paul Stevens says corporate speech should not be treated the same as that of people. The ruling overturns two precedents about the free speech rights of corporations: Austin v. Michigan Chamber of Commerce , a 1990 ruling that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission , a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

2011 First Amendment Protects Funeral Protests

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.” Those are Chief Justice John G. Roberts Jr.’s words when the Supreme Court rules in Snyder v. Phelps that the First Amendment’s right to free speech protects hateful protests at military funerals. Members of the Westboro Baptist Church — which believes God is punishing the U.S. for its tolerance of homosexuality — had appeared at the funeral of a Marine who died in Iraq. Albert Snyder, the Marine’s father, sued the protesters for, among other things, intentional infliction of emotional distress. Roberts suggests that laws creating buffer zones around funerals would be a better response than punishing unpopular speech. He says that the nation’s commitment to free speech demands protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

2012 Person’s Right To Lie Is Protected

The U.S. Supreme Court strikes down the Stolen Valor Act, a federal law that made it illegal for individuals to claim to have won or to wear military medals or ribbons that they didn’t earn. The Court, in a 6-3 ruling, says that the First Amendment protects the right to lie about medals and military service. Justice Anthony M. Kennedy says freedom of speech “protects the speech we detest as well as the speech we embrace.” The government had argued that such lies “inhibit the government’s efforts to ensure that the armed services and the public perceive awards as going only to the most deserving few.”

2012 U.S. Can’t Require Graphic Warnings On Cigarette Packs

The U.S. Court of Appeals for the District of Columbia Circuit rules that the federal Food and Drug Administration cannot require tobacco companies to place large graphic health warnings on cigarette packages to show the effects of smoking. The appeals court upholds a lower court’s decision that the requirement violates the First Amendment’s free speech right. Some of the largest tobacco companies sued the government, arguing that the warnings were not just factual information but advocated against smoking.

2015 States May Limit Judicial Candidates’ Fund-Raising Requests

The U.S. Supreme Court rules, 5-4, in Williams-Yulee v. Florida Bar , No. 13-1499 that states may ban judicial candidates from personally asking their supporters for money. Twenty-nine other states also prohibit personal solicitations, which they say threaten the integrity of the judicial branch and public confidence in the system.

2015 Intent Cited in Online Threats Case

In a social media case, Elonis v. United States , the U.S. Supreme Court reverses the conviction of a Pennsylvania man who had used violent language against his wife on Facebook. The majority opinion says prosecutors failed to prove the defendant’s intent when he published threatening lyrics about his wife on Facebook. The decision makes it harder to prosecute people for threats made on social media.

2015 Court Says Texas May Reject License Plate Design

The U.S. Supreme Court decides in Walker v. Texas Division, Sons of Confederate Veterans, Inc. , 5-4, that Texas may refuse to make a specialty license plate with the Confederate flag. The Sons of Confederate Veterans sued the state when it refused to make such a plate. The group said its First Amendment right to free speech had been violated. The majority opinion says that because license plates “constitute government speech,” Texas could choose which designs to produce.

2015 Town Ordinance On Signs Struck Down

In Reed v. Town of Gilbert, Ariz., the U.S. Supreme Court unanimously strikes down a town law that treated a church’s signs differently from other signs, such as political ads. Unlike other signs, the church signs were limited in size and allowed to be in place for only a certain number of house. The majority opinion says that the town ordinance was based on the content of the sign’s message, which violates the First Amendment’s free speech right.

2019 Federal Ban on ‘Immoral,’ ‘Scandalous’ Trademarks Struck Down

The U.S. Supreme Court rules, 6-3, that the federal government’s ban on registering “immoral” and “scandalous” trademarks violates the First Amendment of the Constitution. The dissenters express concern that the majority opinion goes too far and that the trademark office would be forced to register trademarks containing “the most vulgar, profane, or obscene words and images imaginable.” In the case, Iancu v. Brunetti, a Los Angeles artist, Erik Brunetti, sued the government for refusing to register the trademark for his “subversive” clothing line.

2021 Court Backs Catholic Agency Over Refusal To Work With Same-Sex Couples

The U.S. Supreme Court sides with a Catholic foster care agency that was cut off by the City of Philadelphia from receiving foster care referrals because it refused to work with same-sex couples. The agency believes marriage is between a man and a woman. The Court unanimously rules in Fulton v. City of Philadelphia that the city was wrong to end its foster care contract with Catholic Social Services. Chief Justice John G. Roberts Jr., writing for six of the justices, said the city’s refusal to contract with the foster care agency unless it agreed to certify same-sex couples as foster parents violated the First Amendment.

2021 Court Sides With Cheerleader In Off-Campus Speech

The U.S. Supreme Court rules 8-1 in Mahony Area School District v. B.L. in favor of a Pennsylvania cheerleader who lost her place on the squad because of a profane off-campus rant posted on social media. Although the Court said the punishment violated her First Amendment right of free speech, it declined to say schools never have a role in disciplining students for off-campus speech.

2022 Censure of Politician Is Constitutional, High Court Says

The U.S. Supreme Court unanimously decides in House Community College System v. Wilson that elected bodies do not violate the First Amendment’s free speech clause when they censure a member. Justice Neil M. Gorsuch wrote: “In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers — and to continue exercising their free speech rights when the criticism comes.”

2022 High Court Rules Against Boston On Christian Flag

The U.S. Supreme Court unanimously rules in Shurtleff v. City of Boston that the City of Boston violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall. One of three flagpoles is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride. In a 12-year period, the city approved 284 requests to raise flags and rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our Judeo-Christian moral heritage.” The city’s refusal to let the group fly its flag based on its religious viewpoint violated the free speech clause of the First Amendment, the majority opinion said.

Related Resources

• Book: First Amendment (1791)
• Handout: Freedom of Speech: Finding the Limits
• Book: Chapter 6: The Right to Freedom of Speech
• Video: A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O'Connor: Freedom of Speech
• Book: Chapter 8: The Latitude and Limits of Free Speech
• Book: Chapter 10: The Flag-Salute Cases
• Book: Chapter 18: Freedom of Speech in Public Schools

Jun 17 Freedom of Speech for Students: Applications and Implications of the 1st Amendment on Campus

By: Ava Malkin Volume IX – Issue I – Fall 2023

I. Introduction and Background

In December of 1791, the United States government approved the first ten amendments to the Constitution, formally known as the U.S. Bill of Rights. [1] Colloquially referred to as the “freedom of speech,” the “freedom of religion,” “freedom of the press,” “the freedom of assembly,” and “the freedom of expression,” the First Amendment of the Constitution provides all American individuals with the liberty to practice their preferred religion, to verbally express their views, to write and publish these views, and to protest without interference from Congress. [2]

A multitude of Supreme Court cases have debated the extent to which this right may apply to extraneous circumstances, thereby outlining its unique inclusions and limitations. The unspoken extensions of the freedom of speech were specified rulings between 1943 and 1990. West Virginia Board of Education v. Barnette (1943) found that there is no obligation to salute the flag if it violates an individual’s religious beliefs, thereby implying that the First Amendment also covers the right not to speak if an individual prefers to do so. [3] Cohen v. California (1971) ruled that offensive speech, which in this case involved cursing language in relation to the draft, is permitted to convey political messages as long as it is not directed at or threatening harm to particular individuals. [4] Buckley v. Valeo (1976) permitted the contribution of money to political campaigns, limiting the quantity based on “the size and intensity of the candidate's support,” further defining and narrowing the concept of political expression. [5] Virginia Board of Pharmacy v. Virginia Consumer Council (1976) and Bates v. State Bar of Arizona (1977) clarified business entities’ ability to advertise legal services and the prices of prescription drugs. [6,7] Texas v. Johnson (1989) and United States v. Eichman (1990) maintain the right to engage in symbolic speech, such as the burning of a flag with the intention of protest. [8,9] Most importantly for the present subject, Tinker v. Des Moines (1969) found that students can wear armbands to protest a war since no members of a school community “shed” their rights upon entering educational facilities. [10]

There are also notable limitations to the First Amendment, which cases from 1957 to 2007 outline. Obscenity and the distribution of indecent materials remains unprotected by the freedom of expression, as Roth v. United States (1957) highlighted this unconstitutionality concerning both speech and press. [11] Additionally, although Tinker v. Des Moines (1969) and Cohen v. California (1971) allow for the use of accessories and certain offensive phrasing with the intention of protesting a war or conveying political perspectives, United States v. O’Brien (1968) clarified that the First Amendment does not authorize the destruction of draft cards via arson. [12] Free speech is also restricted in cases of incitement of lawless action, as delineated by Brandenburg v. Ohio (1969), where constitutionality was upheld in relation to the charges against a Ku Klux Klan member for advocating for crime and terrorism. [13] For students in particular, Hazelwood School District v. Kuhlmeier (1988) established that schools can restrict student publications that are not in line with an educational function, Bethel School District v. Fraser (1986) prevents obscene or “lewd” speech at school-sponsored activities, and Morse v. Frederick (2007) prohibits the promotion of drug use at school-sponsored occurrences. [14,15,16]

For students in particular, it is of utmost importance to remain aware of these liberties, as it has become abundantly clear that nuances apply to the verbal, written, and active undertakings of participants on campuses. However, this amendment-provided right is not entirely applicable to students enrolled in all types of institutions, as those in private spaces retain different free speech protections due to their varying private funding. The First Amendment reserves the government’s right to uphold and place restrictions on the freedom of expression for all government-funded systems, but because private institutions do not receive funding from the government, they set their own standards for forms of communication engaged in on campus or via institutional means, for example, the school newspaper. Accordingly, private schools are not subject to free speech compliance to the extent required by public institutions, but many nonetheless enforce school-specific policies and statements that students adhere to. Therefore, the present focus relies upon proceedings in relation to students in public institutions given the universal applicability of the First Amendment for these individuals.

II. Relevant Precedents

Beginning with the two most relevant decisions, one would benefit most from delving into both Tinker v. Des Moines (1969) and Hazelwood School District v. Kuhlmeier (1988), as these two Supreme Court cases set the precedent for the admittances and restrictions on free speech for students.

i. Tinker v. Des Moines (1969)

On December 16th, 1965, John F. Tinker, Mary Beth Tinker, and Christopher Eckhardt, 15-year-old, 13-year-old, and 16-year-old junior high school students, respectively, in Des Moines, Iowa, wore black armbands in protest of the atrocities occurring due to the Vietnam War, outwardly expressing their desire for a truce. With the knowledge that the school recently inhibited the use of armbands as protest against the war and that the consequence of breaking this newly adopted policy would be suspension, the Tinker siblings and Eckhardt proceeded with the symbolic accessories and each received a suspension. The young protestors then took to court through their parents and filed a complaint in the District Court for the Southern District of Iowa against the school for their form of chastisement, pursuing nominal damages.

The district court upheld the constitutionality of the school administration’s decision to discipline this self-expression, and the U.S. Court of Appeals for the Eighth Circuit affirmed; however, the Supreme Court reversed this decision. A 7-2 majority decision of the Warren court found that the policy of reprimanding an individual for declaring their views, even via physical articles of clothing, restricted the students’ freedom of speech. The majority of the justices, with the exception of Justice Hugo L. Black and Justice John M. Harlan II, held that the First Amendment shall extend onto school property. [17] Both the petitioner and the court recognized that these armbands were entirely separate from any potential disruption to the school environment, meaning the school could not justify their punishment and infringement upon a student's freedom of speech based on the argument that this conduct interferes with and disrupts the operation of the school. Tinker and Eckhardt’s bands in no way obstructed school events, but instead, their suspensions were a byproduct of fear of disturbance, thereby infringing upon their rights provided by the first article of the Bill of Rights.

Although some may argue the strong influence of parents in this case, the prominent outcome involves students retaining their First Amendment rights within school walls. The most valuable takeaway from this case indicates that students’ freedom of speech extends to physical means of expression, even applying to protest against specific aspects of war, and that these rights cannot be limited by the school administration unless there are significant impacts to the learning environment. Generally, the majority opinion epitomizes the importance of this case, where Justice Abe Fortas wrote, “It can hardly be argued, that either students or teachers shed their constitutional rights to freedom of speech or expression at the school-house gate.” [18]

ii. Hazelwood School District v. Kuhlmeier (1988)

In May of 1983, Cathy Kuhlmeier and two other students of Hazelwood East High School, a public school in Saint Louis, Missouri, recognized that their two newspaper articles were withheld from publication in the school paper, entitled The Spectrum . The pieces, which described students’ personal experiences with pregnancy and parental divorce, were completed in participation with a Journalism II course as part of the high school’s curriculum, and the teacher submitted the pages to the school's facility, particularly principal Robert E. Reynolds, for approval. Reynolds withheld the articles from the May 13, 1983 printing because they were deemed inappropriate due to their references to sexual activity and birth control, their lack of security in the anonymity of students, and their lack of parental control over the narrative of their own conduct and personal relationships. [19]

Kuhlmeier and her two fellow former student writers took to the District Court for the Eastern District of Missouri in St. Louis, claiming the school violated their First Amendment rights. The district court ruled that the administration had the authority to remove the articles from the school-sponsored paper, and the United States Court of Appeals for the Eighth Circuit reversed. The Supreme Court reversed this appellate decision, finding that the principal's prevention of publication was not unconstitutional. Public schools retain the right to control the narrative of their own publications, unlike public forums of journalism, which would follow processes similar to that of Tinker . [20] A 5-3 ruling of the Rehnquist Court confirmed that the Missouri public school acted in the interest of protecting student identities, parental information, and the overall integrity of The Spectrum .

The preeminent outcome of this case was the distinction between “the press” via public format, where the freedom of speech is consistently upheld, versus via school-funded publications, where the narrative is controlled by the school administration specifically. This means that schools reserve the right to edit or deny papers from being distributed for their specific content, especially if it does not align with the school’s values and/or it compromises the privacy or safety of its students and their families.

iii. Clarification of the Paradoxical Nature of Tinker and Kuhlmeier

Although these two cases seem somewhat paradoxical in nature, as one extends the freedom of expression via physical means and one limits the freedom of speech via written means, both cases still stand as the foundations for students’ freedom of speech, establishing rudimentary precedents for future free speech cases. Decided approximately twenty years apart, both cases tackle young students openly combating actions their schools have taken against them by citing their First Amendment rights. While their outcomes moderately oppose one another, the two decisions actually do not counteract each other because they simply relay different manifestations of the First Amendment: Tinker via anti-war armbands and Kuhlmeier via school-funded journalism. One does not overrule the other, and each retains its proper specifications on the freedom of expression within educational institutions. Therefore, scholars that argue conflicting outcomes to the extent that “ Kuhlmeier eviscerates the Supreme Court’s decision in Tinker ” are not entirely accurate, and neither marks “the end of an era” for all of a student's freedoms. [21] Instead, these two landmark cases simply provide guidelines for future cases and cultivate workings for future proceedings and acts that may continue to protect students and facilitate their intellectual growth via speech, writing, and protest.

III. Applications of these Precedents in the Supreme Court

i. Major Cases that Cite Tiker and Kuhlmeier

The Court has since applied these decisions in a variety of similar cases where students openly advocate for their First Amendment rights to be upheld within their academic environments. To fully comprehend the extent to which students’ rights can be both protected and limited by a school environment, one must delve into a few situations that cite Tinker and Kuhlmeier for support or evidence of previous acceptance of a specific inclusion or infringement.

In Healy v. James (1972), students part of an independent “local chapter” of Students for a Democratic Society at a state-funded college were denied acknowledgment as an official campus organization, as this recognition would permit the group to use campus facilities, bulletins, and newspaper space. [22] Dr. James, the school’s president, considered this group’s independence from the National Students for a Democratic Society insufficient for registration, as the organization as a whole tended to support violence and disruption as a means to argue for rights. The students took to the district court to claim a violation against their First Amendment rights, citing Tinker v. Des Moines (1969). The lower court deemed the president’s rejection of the group constitutional, as it maintained the intention of protecting the school community from potential violence; however, the Supreme Court held that James’ action violated the freedom of speech, finding that the district overestimated the burden of proof of potential harm and underestimated infringement upon the First Amendment.

This does not solely pertain to groups and organizations, as it may involve only one student and their actions. Papish v. Board of Curators (1973) involves a journalism student at the graduate school of the University of Missouri, Barbara Papish, being expelled for distributing a highly offensive newspaper on campus. This paper consisted of political cartoons where policemen sexually assaulted the Statue of Liberty and the Goddess of Justice alongside a description using swear words. [21] Papish then took to court, claiming that the university could not censor her freedom of expression using the guise of bylaws that prevent “indecent” speech. In consideration of both the Tinker and the Healy decision, the Supreme Court ruled in favor of the young petitioner, finding that the school must reinstate her and restore her credits, as the paper she gave out could not officially be considered obscene, meaning the school could not reprimand her for their disapproval of its content. [23] Even though strictly “obscene” content is unprotected by the freedom of speech, the court did not classify the newspaper under this category, meaning Papish and her expression remained intact and the school could not punish her without significant proof of harm or concern for the school community.

One may now recognize that the First Amendment expands to individuals, groups, and written means, but this also is relevant in cases of religious expression. Widmar v. Vincent (1981) deals with officials at the University of Missouri at Kansas City preventing a “Cornerstone” religious group from accessing school buildings or property with the purpose of worship and teaching. The group sued the university in the Western District of Missouri, utilizing Tinker as confirmation that this religious discrimination infringed on their First Amendment right of free religious exercise and speech. While the lower court regarded the university’s prevention of specific religious expression as constitutional, the Supreme Court held that the school’s policies were both exclusionary and discriminatory by failing to permit equal access to all religious groups, thereby violating Cornerstone’s First Amendment rights. [24]

Such applications also began appearing in cases of speeches by one student to a crowd within the academic environment. In Bethel School District v. Frase r (1986), Matthew Fraser, a student at a public high school, received disciplinary reprimands for delivering a sexually promiscuous speech filled with metaphors and innuendos to an audience of 600 students despite receiving warnings from teachers and the assistant principal. Upon receiving a suspension and being removed from the list of potential graduation speakers, Fraser filed suit against the school by applying Tinker to argue that his First Amendment right was violated. This lower court found that the school’s consequences were unconstitutional; however, the Supreme Court reversed this holding, deciding that the suspension and reprimand were not a product of a political viewpoint, and because the speech breached the school’s mission and policies, the school retained the right to incite repercussions without disobeying the freedom of expression. [25] This serves as evidence that a school has grounds to prohibit the use of “lewd” or vulgar speech on its property.

This form of expression on school property is not limited to verbal statements, as it may also apply to clothing, posters, and banners. Morse v. Frederick (2007) deals with the latter, where Frederick and other students at their high school-supervised event held a banner with a phrase perceived by Morse, the school’s principal, to be promoting illegal drug use. Upon direction to remove the banner, Frederick refused, and the banner was seized, causing Frederick to receive a suspension for violating school policy by advocating for drug use. Frederick filed suit, employing Tinker as support for a violation of his First Amendment rights. The Supreme Court held that the school did not breach Frederick’s freedom of expression via the confiscation of his pro-drug banner and subsequent suspension, as Kuhlmeier serves as evidence that school officials can limit what is presented in school-sponsored environments. [26]

The argument based on First Amendment right infringement even experienced clarifications in more recent times, particularly in relation to technology use by students. B.L. v. Mahanoy Area School District (2021) considers Brandi Levy, a sophomore honors student at Mahanoy Area High School, who experienced an expulsion from her position on the cheering squad following her “Snap”, also formally entitled SnapChat, a social media publication featuring a picture of her holding up a middle finger with inappropriate language captioning the image. The school, coaches, and administrators justified by claiming the school reserves the ability to discipline a student for his or her disrespect to the school. Through her parents, B.L. filed a motion, citing Tinker as verification that schools are unable to restrict student speech, particularly off-campus, via broad and discriminatory policies. The Supreme Court found that, although schools may regulate (a) vulgar speech, (b) speech regarding drug use, and (c) speech that may negatively alter the impression of a school — particularly via the newspaper as seen in Kuhlmeier — schools may not control expression off-campus; this indicates that the school infringed upon B.L.’s rights by suspending her for her social media use. [27]

Tinker and Kuhlmeier are also often cited in cases that do not exceed the lower circuits, where situations like Hardwick v. Heyward (2013) make their way to the Fourth U.S. Circuit Court of Appeals, using Tinker to claim their school violated their First Amendment rights by punishing them for wearing clothing with confederate flags and imagery. [28] The court, however, found that the school did not infringe upon any rights, claiming this is an instance of potential racial tension with its effects extending far beyond protest-related paraphernalia and into the fields of student discomfort and unease. This means Kuhlmeier becomes more applicable in that the school claims to have been acting in the best interests of its wider community as well as its safety, meaning there is no official violation of freedoms. This one example of a lower court case provides further evidence for the malleability and situational nature of these rights even though Tinker and Kuhlmeier delineated specific areas of limitation.

ii. Takeaways from these Cases

These cases all provide evidence for the circumstantial nature of the application of Tinker and Kuhlmeier , where students tend to be favored in their protection of free speech as long as their expression does not cause or threaten substantial harm to the wider school community. While Healy v. James (1972) and Widmar v. Vincent (1981) deal with student associations, both political and religious, and the rest of the aforementioned cases recognize individual students, the freedom of speech has identified itself as a factor that, under most circumstances, protects students’ actions and beliefs within their identified groups or along their own personal courses; these conditions are mostly limited by the Constitution when the group or individual causes tangible harm or disruption to the academic institution and community as a whole, as demonstrated by Bethel School District v. Fraser (1986), Morse v. Frederick (2007), and Hardwick v. Heyward (2013). From the original rulings to those that ensued, Tinker and Kuhlmeier outline the eligibility to utilize the argument of First Amendment right infringement for students.

IV. Relevance to Students Now: Knowing One’s Rights

i. Current State and Importance for Students

To summarize the overall implications of the aforementioned decisions, students are permitted to exercise their First Amendment right on campus and via school-funded means as long as it does not present a threat to campus integrity or school member safety, contain lewd language, or reference illicit drugs. This right can thereby be exercised through a variety of means, whether it be through physical representations—such as clothing and appropriate banners—symbolic actions, or even intellectual representations that employ the newspaper and social media platforms.

Some scholars and individuals express concern for the larger implications of Kuhlmeier in that it provides a framework to limit students’ freedom of expression; however, in terms of written means specifically, efforts are being made to ensure that this case is not the universal standard for unjustified censorship of student perspectives. For example, the Student Journalism Free Speech Act, which is active in seventeen states, ensures educational institutions may not prevent publications unless “such speech is libelous, an invasion of privacy, or incites students to commit an unlawful act, violate school policies, or to materially and substantially disrupt the orderly operation of the school.” [29] This thereby confirms the necessity for considerable inappropriateness or concern for its wider audience in order to violate a student’s First Amendment right on campus. Additionally, the American Civil Liberties Union (ACLU) expresses that they continuously fight for the “free expression of all ideas, popular or unpopular” ever since their 1920 founding, and they work in courts and within communities to defend and preserve this right for students. [30] Beyond new policies themselves, some organizations have provided suggestions for campus speech codes, including the Foundation for Individual Rights and Expression (FIRE) which compiled exemplary policies from various higher-level institutions to assist all in understanding what safe, fair, and legal policies are. FIRE, by citing various university policies, outlines the possibility of maintaining the freedom of speech, while also preserving academic freedom and promoting equitable and secure campuses. [31]

This extends far beyond student writing into general learning experiences and intellectual growth, with restrictions on teachings and readings that call for further action regarding the First Amendment. Dean Erwin Chemerinsky of the University of California, Berkey, School of Law surmises the query of if the First Amendment principles extend into “laws that prohibit the teaching of critical race theory.” [32] To exemplify this concern, Chemerinsky mentioned Tennese’s Prohibited Concepts in Instruction, which prevents teaching topics that might cause an individual to “feel discomfort, guilt, anguish or another form of psychological distress solely because of the individual’s race or sex” or that implies an “individual’s race or sex” would make them “privileged, racist, sexist, or oppressive, whether consciously or unconsciously.” [33] He also recognized Florida’s Stope WOKE Act [34], which prevents teachings usually involved in diversity training, questioning how these types of proceedings will affect both teachers’ and students’ ability to converse, communicate, and learn within public school environments. Using Chemerinsky’s mindset, the concept that student’s free speech also extends to classroom content also calls for concern about book bans; PEN America, an organization dedicated to preserving free expression through literature, finds that book bans dramatically increased recently, with around 1,500 new bans in this recent 2022-2023 school year alone. [35] While some may argue that withholding certain topics from classrooms and literature is not a direct infringement upon student’s freedom of expression, such bans, proceedings, and censorships prevent students from truly learning and forming their own views; this implies that such proceedings can be considered an infringement upon First Amendment rights, which brings up Chemerinsky’s questions about how courts will choose to deal with this. In current circumstances, where restrictions and bans are so prevalent, students, teachers, and even parents should be aware of the preceding in their state or district to ensure they may maintain a well-rounded comprehension of not simply their personal rights, but also of generally diverse academic and social content.

As previously mentioned, in relation to college campuses specifically, public institutions are intended to follow the policies of the government, while private institutions make their own policies surrounding their students’ freedom of expression. Cornell University takes a particularly intriguing stance on this First Amendment right, particularly by combining private and public funding among its various colleges. In other words, they are required to follow the constitutional guidelines in the state-assisted colleges and can make their own guidelines in their privately-supported colleges. Cornell University recognizes First Amendment policies in their Faculty Handbook by acknowledging that “[f]reedoms to engage in research and scholarship, to teach and to learn, to express oneself and to be heard, and to assemble and to protest peacefully and lawfully” provide vital foundations for the institution and its students; these liberties are also granted via their Statement of Core Values, which states that Cornell University “value[s] free and open inquiry and expression—tenets that underlie academic freedom—even of ideas some may consider wrong or offensive.” [36] This indicates that the university’s policies essentially mimic that of the First Amendment, providing students with the ability to express their values and views within an academic context. Similar to the freedom of expression, these rights are only limited by the university in instances of abuse, which includes illegal acts as well as “discrimination, harassment, and sexual and related misconduct.” Cornell University openly recognizes that its students and faculty should respect the rights of others to facilitate a productive and safe academic, social, and working environment. [36] This environment can be consistently upheld if all members of the educational institution comprehend these guidelines and protocols in the expression of their First Amendment rights.

ii. Personal Perspective

While both Tinker and Hazelwood prevail as foundational proceedings for students’ First Amendment rights, it becomes easy to side with one over the other for their somewhat opposing outcomes, despite dealing with slightly different free expression manifestations. I find it more logical to follow the preceding of Tinker over Hazelwood . Tinker recognizes the ability to maintain freedom of expression via items of clothing and, via its later citings, freedom of speech and religion, as long as a student does not threaten or cause any damage or distraction within the school environment. Hazelwood does not appear to follow this guideline, censoring student work due to its content potentially causing harm or discomfort within the student body and parents. Principle Reynolds never permitted the publishing of these papers, so I theorize that Hazelwood ’s First Amendment right actually could have been infringed upon. Without viewing the effects of the papers, the school had no distinct evidence of supposed severe disruption or detriment, meaning they based their argument off of worry and assumptions. These inferences, although upheld in the Supreme Court, potentially caused more harm than good to the school community. The argument that topics of pregnancy and divorce could be inappropriate for the student body is valid, but other students might benefit from reading about such topics to learn and potentially even identify with others who experienced similar struggles. Additionally, Hazelwood East High School not only took a strong stance that Kuhlmeier ’s writing, even as part of a class, was not acceptable to be published, but their actions also signaled to all other students that their hard work and writing might never merit a page in The Spectrum . This is in no way an attempt to argue that educational institutions should not have a say in what is discussed within their publications or their environment in general; later cases, such as Papish v. Board of Curators (1973), demonstrated that journalism should not be limited within a school environment due to their content. However, it is entirely contradictory to allow students to wear armbands, identify as part of a group, or outwardly express their views via social media, but not to permit the discussion of relatable and realistic topics within a school setting.

iii. A Call to Action

Using the current judicial standings on students’ freedom of speech and what can be done to protect this right, both technological and intellectual should be considered in relation to the First Amendment. Because B.L. v. Mahanoy Area School District (2021) recognized that social media posts made off-campus and outside of school hours are protected under the freedom of speech and cannot be punished within the school environment, there are potential additions to the First Amendment, or at least more timely concepts that can be applied, in relation to forms of media beyond Hazelwood’s written expression, including onto more technologically-contemporary forms of expression, particularly social media. While social media is implied by the general and applicable First Amendment, it is important for a stance by either the federal government or individual state governments, on whether B.L. v. Mahanoy Area School District (2021) forms a precedent for all student social media posts, and extends that ruling to encompass other social media applications used outside of school. Additionally, due to contemporary educational restrictions, seen in the prevention of critical race theory and book banning, it is time that the federal government makes statements and enacts policies to protect against such restricting censorship policies; current variance among states and districts not only creates ambiguity, while also limiting widespread knowledge and the formation and expression of one’s own beliefs and values. There are improvements and explanations necessary to fully comprehend the First Amendment for students, but as of right now, Tinker and Hazelwood provide the most specific guidelines for acceptable expression.

[1] 1 U.S. Const. amend. I-X.

[2] U.S. Const. amend. I

[3] W. Va. State Bd. of Educ. v. Barnette , 319 U.S. 624, 63 S. Ct. 1178 (1943)

[4] Cohen v. California , 403 U.S. 15, 91 S. Ct. 1780 (1971)

[5] Buckley v. Valeo , 424 U.S. 1, 96 S. Ct. 612 (1976)

[6] Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council , 425 U.S. 748, 96 S. Ct. 1817 (1976)

[7] Bates v. State Bar of Ariz. , 433 U.S. 350, 97 S. Ct. 2691 (1977)

[8] Texas v. Johnson , 491 U.S. 397, 109 S. Ct. 2533 (1989)

[9] United States v. Eichman , 496 U.S. 310, 110 S. Ct. 2404 (1990)

[10] Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 89 S. Ct. 733 (1969)

[11] Roth v. United States , 354 U.S. 476, 77 S. Ct. 1304 (1957)

[12] United States v. O'Brien , 391 U.S. 367, 88 S. Ct. 1673 (1968)

[13] Brandenburg v. Ohio , 395 U.S. 444, 89 S. Ct. 1827 (1969)

[14] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562 (1988)

[15] Bethel Sch. Dist. v. Fraser , 478 U.S. 675, 106 S. Ct. 3159 (1986)

[16] Morse v. Frederick , 551 U.S. 393, 127 S. Ct. 2618 (2007)

[17] Oyez. “Tinker v. Des Moines Independent Community School District.” Oyez Supreme Court Cases. Accessed November 2, 2023. https://www.oyez.org/cases/1968/21.

[18] Kelly Shackelford, "Mary Beth and John Tinker and Tinker v. Des Moines: Opening the Schoolhouse Gates to First Amendment Freedom," Journal of Supreme Court History 39, no. 3 (November 2014): 372-385

[19] Oyez. “Hazelwood School District v. Kuhlmeier.” Oyez Supreme Court Cases. Accessed November 2, 2023. https://www.oyez.org/cases/1987/86-836.

[20] United States Courts. “Facts and Case Summary - Hazelwood v. Kuhlmeier.” United States Courts. Accessed November 2, 2023. https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-hazelwood-v-kuhlmeier.

[21] Abrams, J. Marc, and S. Mark Goodman. "End of an Era-the Decline of Student Press Rights in the Wake of Hazelwood School District v. Kuhlmeier." Duke LJ (1988): 706.

[22] Healy v. James , 408 U.S. 169, 92 S. Ct. 2338 (1972)

[23] Papish v. Bd. of Curators of Univ. of Mo ., 410 U.S. 667, 93 S. Ct. 1197 (1973)

[24] Widmar v. Vincent , 454 U.S. 263, 102 S. Ct. 269 (1981)

[25] Bethel Sch. Dist. v. Fraser , 478 U.S. 675, 106 S. Ct. 3159 (1986)

[26] Morse v. Frederick , 551 U.S. 393, 127 S. Ct. 2618 (2007)

[27] Mahanoy Area Sch. Dist. v. B.L ., 141 S. Ct. 2038 (2021)

[28] Hardwick v. Heyward , 711 F.3d 426 (4th Cir. 2013)

[29] Student Journalism Free Protection Act, 2023

[30] American Civil Liberties Union. “Speech on Campus.” American Civil Liberties Union. Accessed November 19, 2023. https://www.aclu.org/documents/speech-campus.

[31] Foundation for Individual Rights and Expression. “Model Speech Policies for College Campuses.” The Foundation for Individual Rights and Expression. Accessed November 19, 2023. https://www.thefire.org/research-learn/model-speech-policies-college-campuses.

[32] Chemerinsky, Erwin. “Education, the First Amendment, and the Constitution .” University of Cincinnati Law Review , 2, 92, no. 1 (2023).

[33] TENN. CODE ANN. § 49-6-1019 (2023).

[34] H.R. 7, 2022 Leg., Reg. Sess. (Fla. 2022) (Second Engrossed)

[35] PEN America. “Banned in the USA: State Laws Supercharge Book Suppression in Schools.” PEN America, August 21, 2023. https://pen.org/report/banned-in-the-usa-state-laws-supercharge-book-suppression-in-schools/.

[36] Cornell University. “Cornell Policy Statement on Academic Freedom and Freedom of Speech and Expression.” Office of the Dean of Faculty, n.d. https://theuniversityfaculty.cornell.edu/the-new-faculty-handbook/statement-on-academic-freedom-and-freedom-ofspeech-and-expression/.

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91 First Amendment Essay Topic Ideas & Examples

🏆 best first amendment topic ideas & essay examples, 👍 good essay topics on first amendment, 🥇 interesting topics to write about first amendment, ❓ first amendment essay questions.

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• The First Amendment: Free Speech and Education However, this is the case only “unless school authorities have reason to believe that such expression will substantially interfere with the work of the school or impinge upon the rights of other students”.
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• Religious Establishment Clause of the First Amendment Therefore, based on the theoretical application of the Constitution, the chosen case violates the Religious Establishment Clause of the First Amendment to the U.S.
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• Journalism, the First Amendment and Egypt This essays suggests that the First Amendment freedom of the press clause has transcended its physical boundaries and now functions as a protective ideological bubble not only for American journalists but for journalists all over […]
• First Amendment: Commercial and Political Free Speech However, the degree to which the First Amendment protects commercial speech is not the same as that for other forms of speech protected by the Amendment.
• What the Founders Meant by the First Amendment? The first amendment was written over 200 years ago by the founders who wanted to protect both the State and religion from interfering in each others tasks.
• Free Speech: First Amendment Obscenity is one of the exceptions, according to the US Miller Test, obscenity is a test used by Supreme Court to determine if an expression or a speech can be termed obscene and whether it […]
• On the First Amendment to the U.S. Constitution The freedom that Americans experience comes at a price because there are conflicts and problems that arise from the interpretation and implementation of the First Amendment, however, many legal experts are saying that it is […]
• The Free Exercise Thereof: Freedom of Religion in the First Amendment The Freedom of Religion clause in the First Amendment represents one of the few official documents on the planet that corroborates free will, specifically, the right to choose, in the arena of religion.
• US Constitution Reflections on the First Amendment Paper The first amendments made on the constitution of the United States of America in the year 1789 concerned the bill of rights.
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• How the First Amendment Rights Have On Advancing Democracy
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• What Is the Significance of the First Amendment to Civil Society?
• What Is the Work of the First Amendment Committee?
• How Does the Supreme Court Interpret the First Amendment?
• What Religious Cases Does the First Amendment Control?
• How Are First Amendment Rights Applied and Limited?
• Does the First Amendment to the US Constitution Regulate Ever-Changing Freedoms?
• How Do First Amendment Rights Affect the Development of Democracy?
• What Is the Interpretation of the First Amendment to the Constitution?
• Does the First Amendment Affect Your Livelihood?
• Does the First Amendment Limit the Government’s Power?
• What Inappropriate Words Should Be Removed From the First Amendment?
• Does Public Safety Override a Plaintiff’s First Amendment Right?
• Should Rap Songs Be Protected by the First Amendment?
• Does the First Amendment Protect False Campaign Speech?
• Should Racist Speech Enjoy Protection Under the First Amendment?
• US History Topics
• Freedom of Speech Ideas
• Sixth Amendment Topics
• Freedom Topics
• Tolerance Essay Ideas
• Civil Law Paper Topics
• Human Rights Essay Ideas
• Media Bias Questions
• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2024, February 24). 91 First Amendment Essay Topic Ideas & Examples. https://ivypanda.com/essays/topic/first-amendment-essay-topics/

"91 First Amendment Essay Topic Ideas & Examples." IvyPanda , 24 Feb. 2024, ivypanda.com/essays/topic/first-amendment-essay-topics/.

IvyPanda . (2024) '91 First Amendment Essay Topic Ideas & Examples'. 24 February.

IvyPanda . 2024. "91 First Amendment Essay Topic Ideas & Examples." February 24, 2024. https://ivypanda.com/essays/topic/first-amendment-essay-topics/.

1. IvyPanda . "91 First Amendment Essay Topic Ideas & Examples." February 24, 2024. https://ivypanda.com/essays/topic/first-amendment-essay-topics/.

Bibliography

IvyPanda . "91 First Amendment Essay Topic Ideas & Examples." February 24, 2024. https://ivypanda.com/essays/topic/first-amendment-essay-topics/.