The Free Speech Rights of High School Students

The First Amendment to the U.S. Constitution

“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 of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Background

“The most notable phenomenon we have observed recently is that free speech is being aggressively challenged at the high school level, including in student publications. In some cases, school administrators are squelching views they find outlandish or disagreeable, but the complaints often have less to do with ideology than with avoiding controversy of any sort. Often, after acting harshly, they have second thoughts or outsiders step in to calm the situation.”

—Sanford Ungar, Free Speech Project Director, February 2019

High school censorship takes several different forms. See these examples from recent years on the Free Speech Tracker:

Student Press

Texas high school censors paper, fires award-winning journalism adviser — March 2018
Utah high school censors student newspaper story about a teacher under investigation — January 2018
Vermont principal’s censorship of high school newspaper overturned by school commissioner — September 2018
Student journalists in Indiana prevented from writing about sexual assault — October 2018
Arkansas high school censors investigation by student newspaper — November 2018
Denver student journalists reporting on teacher strike silenced by school officials — February 2019
California school district reluctantly allows high school paper to publish article about student working in porn — July 2019

Graduation Speeches

California high school valedictorian’s microphone disabled when speech veers off script — June 2018
High school valedictorian in Kentucky prevented from giving graduation speech that touched on personal identity — May 2018
High school graduation speakers cry censorship over talks urging climate change action — June 2019

Related Incidents on the Free Speech Tracker

The restriction of Free Speech cuts across other genres and venues:

Louisiana high school imposes sanctions on students who protest during national anthem — September 2017
Florida teen faces disciplinary action after racist ‘promposal’ — April 2018
Wisconsin school district declines to punish high school students for Nazi-salute prom photo — November 2018
California teenage girl banned from wearing MAGA hat sues her high school — February 2019
High school cheerleaders cautioned for displaying pro-Trump banner at football game — September 2019
Texas high schoolers suspended for wearing dreadlocks — January 2020
High school junior sues school district for Free Speech infringement, wins settlement — April 2020
Georgia high school students suspended for posting photos of crowds of unmasked students during COVID-19 pandemic — August 2020

The Role of Free Speech

Do Students Still Have Free Speech in School?
The Atlantic
A nationwide movement protecting the student press from censorship gains momentum
Reporters Committee for Freedom of the Press

Points of View

Choose an example from the options below and use it to analyze the issue. Do these points of view change yours? Do they complicate it?

Mary Beth Tinker of Tinker v. Des Moines and Hadar Harris of the Student Press Law Center: Hate speech is showing up in schools. Censorship isn’t the answer, The Washington Post

An editor of a censored high school newspaper: Most states are failing student journalists like me, CNN
A censored valedictorian in California: A Conversation With the Valedictorian Whose Speech Was Censored, NPR
The Knight Foundation: Seven Ways High-School Student Views on Free Speech Are Changing, Knight Foundation

Discussion Questions

Under the standard of the 1988 Supreme Court case Hazelwood v. Kuhlmeier, school administrators in elementary, middle, and high schools can legally suppress speech when the censorship is “reasonably related to legitimate pedagogical concerns.” Based on the examples you read about above, what qualifies as a “legitimate pedagogical concern”? In what cases did the school overstep and infringe on students’ First Amendment rights?
What should be the role of graduation speeches and student newspapers, respectively? Given those roles, when are schools justified in censoring graduation speeches and school newspapers?
How are the Free Speech conflicts emerging in high schools similar to those you’ve heard about on college campuses? How are they different, and why? Should college students (and college newspapers) have greater Free Speech protections than high school students, and why?
How might the conditions of a high school (public, private, or parochial) influence how administrators approach Free Speech? Did you ever experience suppression of Free Speech in your high school?
This module has mostly discussed speech that occurred in on-campus forums, like graduation speeches or school newspapers. But some incidents — such as the racist “promposal” or the alleged Nazi salute in a prom photo — did not occur on campus, though the circumstances were still related to school activities. Should schools be allowed to regulate students’ speech when it doesn’t occur on campus? How might the type of school (public, private, or parochial) affect your answer?

Activity

Click on these themes below: Hate Speech, Press, Identity

Click on these categories below: Education

Discuss: What patterns emerge? What does this selection of stories tell us about Free Speech issues in the United States? What does it say about Free Speech on high school and college campuses?

Themes

Artistic Expression

A pro-Trump mural vandalized with the slogan “stop white supremacy.” A television reboot canceled after a racist remark from its star comedienne. A painter denied a venue after previous sex offenses came to light. University productions of vintage theater works canceled because of language that now seems insensitive. Artists are traditionally seen as having broad creative freedom to express themselves, yet the national climate and divisions along lines of identity have demonstrated just how political art can be. These cases underline that no art form — from theater to sculpture to music — is free from society’s battles about speech.

Foreign Policy

Though less so in recent years, the United States has often sought to expand freedom of expression beyond its borders as a condition of its relations with other countries. Is it right to do so? As speech freedoms are threatened abroad by increasingly authoritarian leaders — and those who embolden them — more and more individuals are likely to be prevented from telling the truth about conditions in their countries. Often inadvertently, U.S. leaders have also complained about Americans’ freedom to criticize, oblivious to the message this sends to foreign leaders.

Hate Speech

For decades, activists have proposed that hate speech — speech that disparages a particular group of people — be restricted in certain arenas. In some universities, for instance, student activists have sought to ban speakers who express openly racist or anti-LGBTQ views. While advocates of civil rights and social justice argue that Free Speech is often used to perpetuate stereotypes and hatred against long-marginalized communities, strict interpreters of the First Amendment tend to agree with a famous line from former Supreme Court Justice Oliver Wendell Holmes, who wrote in a 1929 opinion that the principle of free speech is not “free thought for those who agree with us, but freedom for the thought that we hate.”

Heckler’s Veto

There is seemingly a script for Free Speech disruptions on college campuses: A political provocateur is invited to campus, and protesters agitate against him or her with the aim of precluding the speaker from delivering a talk. This kind of disruption — called “the heckler’s veto” — is repudiated everywhere by experts on First Amendment jurisprudence, who claim that this combative practice is not the way to settle disputes in our society. But some also argue that protesters are guaranteed the right to heckle or even silence a speaker by the First Amendment. Others still take issue with the idea that virulent racism or other threatening speech can be calmly discussed and analyzed.

Identity

Almost any aspect of one’s life can be considered a marker of identity: Beyond race and gender, people cite factors like ability, age, sexual orientation, citizenship or immigration status, and religion as definitional elements of who they are. And Americans today often speak of the communities that form around those identities with an astounding dearth of knowledge about the history that has shaped and informed those experiences. Sometimes, ignorance about these issues can lead to outright combativeness. As people grapple with how to live their identities in a public way, they may encounter the vitriol of those who don’t want to accept their place in society. Should the state protect the views of those who allegedly wish to invalidate the identities of others?

Legal Action

In September 2017, white supremacist Richard Spencer sued for a right to speak on the campus of Michigan State University, a public, land-grant college. Similar legal action took place, with varying results, at the University of Cincinnati, the University of Florida, and Penn State University. Because the right to Free Speech is enshrined in the First Amendment to the U.S. Constitution, those initially denied a platform to speak — often because they appear to present a threat to public order — have had their way after arguing in court that a public space cannot deny anyone a soapbox. These disputes frequently result in civil lawsuits as well as administrative investigations.

National Security

Although the days depicted in Steven Spielberg’s film, “The Post” — with a war in Vietnam, an embattled White House, and the classified Pentagon Papers — are long gone, the government continues to claim it has an interest in keeping certain secret material from the public eye. Massive online leaks, such as the one undertaken by Edward Snowden, a former CIA employee and intelligence analyst, have led to the discovery of civilian surveillance programs orchestrated by the National Security Agency. Meanwhile, former President Barack Obama used the power of the executive to prosecute more leakers under the Espionage Act than all previous presidents taken together, highlighting the tension between the country’s interest in keeping the homeland secure and the public’s right to know how its business is being conducted.

Press

“The only way to assert the right to publish is to publish,” once said Ben Bagdikian, a Washington Post editor who played a pivotal role in keeping the Pentagon Papers public, after the New York Times had been temporarily restrained from publishing the documents. Just a few days later, the Post was also taken to court by the government for doing exactly that: exercising freedom of the press. The modern-era attacks on the media come from all corners, including the White House, which calls mainstream news outlets “fake news” and their journalists “enemies of the people.” Yet the press is one of the stalwart avenues for the defense of Free Speech, and individuals from all political stripes take to op-ed pages to express their (sometimes incendiary) opinions.

Professional Consequences

The concept of academic freedom is frequently invoked when to defend a professor’s incendiary comments in the classroom. But posted online, the same comments could cost the professor his or her position. Because not all universities are publicly funded, competing interpretations of exactly what speech is protected have emerged. Common disciplinary actions include removing professors from teaching, placing them on academic leave, or, particularly in the case of adjunct faculty, firing them outright. The career disruptions go beyond academia, too: in October 2017, a government contractor in Virginia was fired from her job after being photographed giving the middle finger to the presidential motorcade as she bicycled past.

Protest Politics

The First Amendment guarantees the right to assemble, but in recent years that principle has come under increased scrutiny. Whether it be state legislators who want to mitigate consequences for drivers who “accidentally” hit demonstrators or attorneys in the District of Columbia attempting to indict journalists and nurses for rioting they were not a part of, the protest scene in the United States is beginning to resemble the street battles that took place in the Vietnam War era. And as organized political movements have drawn millions for the Women’s March in 2016 or the Families Belong Together March in 2018, the politics of protest are not likely to mellow anytime soon. Does the state ever have a legitimate interest in restricting — or even punishing — protests?

Social Media

Social networks have proven to be the most difficult arenas in which to debate Free Speech. Are they supposed to be a replica of the public square, where nearly any opinion deserves amplification — and scrutiny? Or are they meant to provide a space free of hate speech and misinformation, where users can feel safe communicating their ideas about the world around them? Companies such as Facebook and Twitter have vowed to combat rhetorical bile on their platforms, but have not given the public much insight as to who decides what type of content should be censored. And social content can be permanent: if a user chooses not to delete a post, it can come back to haunt him or her years later, potentially causing career disruptions. How and where to draw the lines in these increasingly popular platforms are among the defining questions for Free Speech today.

Violence / Threats

Professors fearing for their lives as they receive death threats. Shattered storefronts in Washington, D.C., blocks away from a presidential inauguration. Bedlam in Charlottesville as a self-avowed neo-Nazi drives into a crowd of counter-protesters. The link between violence or threats thereof and Free Speech only seems to be getting closer in the United States, and it seems to defy all reason that these incidents continue to occur when the highest court has historically held that speech that incites or directly leads to violence can be restricted.

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