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  • Matthew Tsui

Legislation Regarding Institutions Grasp over Free Speech

The free speech rights of students have long been debated. As citizens of the United States, students should have a wide array of free speech rights under the First Amendment. For example, they should speak, form groups, publish articles, and petition the school governing body.[1] In fact, in the 1969 Tinker v. Des Moines case, the Supreme Court ruled that neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." [2] In this particular case, students from Des Moines wanted to wear black armbands as a sign of protest against the bloody Vietnam war. Still, they ended up getting suspended over complaints that they were violating the learning environment.[2] The principal had given them multiple warnings but to no avail. Thus, the parents sued the school to violate First Amendment rights, which first failed at the local district court, but the supreme court ultimately overturned that decision. However, this was not a complete victory, with the two justices justifying their different ballot by stating that "students attend school to learn not to teach." Thus, it follows the public government's interest in providing students with a solid education to grant the schools enough power to ensure a productive learning environment.

The rights protected under the First Amendment grow far more complicated as we consider private schools. Notably, private schools are not a government body and thus may not be subject to the same whims as public schools. Specifically, many clauses of the First Amendment and Bill of Rights apply solely to limit the government's power over citizen's rights, with the school officials being state actors that must obey those laws. However, as private schools aren't arms, they mustn't follow the same rules and theoretically restrict free speech. It is left to the state courts and other pieces of legislation to decide what power, if any, the schools have over the regulation of student expression. This may range from a simple prohibition of disruptive speech that infringes others' rights to restricting offensive speech to policing anti-school social-media posts more recently.[1]



In mid-2020, the question of free speech in education has reappeared in Mahoney Area School District v. Brandi Levy. In 2017, Brandi Levy, a high school sophomore cheerleader, posted a Snapchat with vulgar imagery with critical remarks.[3] While such an issue should've been ignored, as she was in a fit of rage after missing the varsity squad, the school caught wind of her message and ended up suspending her from a year of cheerleading. While the issue at hand may seem trivial and minor, it brings decades of uncertainty behind the legislature that governs free speech's relationship education. Specifically, do schools have power over off-campus speech?

Historically, the answer is no. In Tinker v. Des Moines, the opinion's wording was quite precise: students shed their first amendment rights "at the schoolhouse gate." [2] This means that while students may be forced to have restricted rights on campus, they naturally enjoyed more extensive rights on off-campus and whatnot. In the initial hearing, Blatt, representing Mahanoy Area School District, conceded that the school had no power over a student "cursing at home or as she walks to school." [3] Thus, social media poses a confusing gray area; while messages may be posted on social media off-campus, its reach contains the entire school community. Therefore, its statements may pose a direct threat to the school's goal of providing quality education to its students. While Levy's angry vent may not seem like that big of an issue, the regulation of social media is crucial, as this would also cover bomb threats, murder threats, and cyberbullying. In Wisniewski v. Board of Education of Weedsport Central School District, an 8th-grade male got suspended with a crude drawing that suggested the killing of a teacher.[4] The justices ultimately declined to comment on the case, unanimously stating that it was a clear breach of the boundary of protected speech.[5]

Therefore, it became clear that a new rule would be needed to govern off-campus speech. The Second Circuit proposed that Tinker would apply if there were a "reasonable foreseeable risk" that the message sparks the attention of school authorities. Similarly, the Fourth Circuit held that "Tinker applies if there is a nexus between the speech and the school's pedagogical interests." [4] All of these tests will soon prove to be far too vague, and currently, it looks as if they're postponing the defining of the boundaries of off-campus speech to later cases. This task of directly defining a one rule fits all seems far too daunting to be possible, with Breyer crying that he "couldn't write a treatise on the First Amendment in this case." [4] Going back to the case, the decision seems all too clear; even if Tinker did govern off-campus speech, the Snapchat message was neither in the "nexus" nor was likely to disrupt school operations to be touched by Tinker. Thus, while the decision in the case might not be all too important, it'll set precedents set to shape the relationship between free speech and school bodies as we know it.

An instance where the sweeping opinion is for colleges to have more power in regulating free speech is for hate speech. Frequently, hate speech hides under the blanket of free speech on college campuses, even though this proves detrimental to maintaining a healthy learning environment. Everyone agrees that hateful speakers should not be allowed a place on campus. However, as Chemerinsky, dean of Berkley law school, makes clear, if schools "were to exclude speakers based on their viewpoint, they would get sued and lose." [6] Thus, the legislation clarifies that public universities, government arms, may not exclude students for views that they express. Furthermore, as there is a distinction between regulation in professional settings and other campus contexts, there lacks justification for restricting speakers based on viewpoints, especially in nonformal settings. Both hate speech and social media pose vital issues that the legislation on schools' power over free speech must review.





  1. https://www.freedomforuminstitute.org/about/faq/what-rights-to-freedom-of-expression-do-students-have/#:~:text=The%20U.S.%20Supreme%20Court%20has,expression%20at%20the%20schoolhouse%20gate.%E2%80%9D&text=For%20example%2C%20school%20officials%20may,invades%20the%20rights%20of%20others.

  2. https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines

  3. https://www.vox.com/2021/4/28/2240713/supreme-court-cursing-cheerleader-mahanoy-school-free-speech-tinker-kavanaugh-sotomayor

  4. https://caselaw.findlaw.com/us-2nd-circuit/1466801.html

  5. https://www.edweek.org/education/justices-decline-student-instant-message-speech-case/2008/03

  6. https://www.vox.com/the-big-idea/2017/10/25/16524832/campus-free-speech-first-amendment-protest

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