A Writer's Guide to the First Amendment: A School for Thought?

Because most readers of this blog are writers, some may have been on the staff of their school newspapers. And those who were in high school or college after 1988 may be aware of Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

In Hazelwood, the school principal pulled two articles from the student newspaper before it went to press. One article talked about the pregnancy experiences of three female students, and, although their names were changed, the principal was concerned that enough details remained to make them identifiable. He was also concerned that some of the discussion in the article was inappropriate for younger students. The second article talked about divorce and included a comment by a named student disparaging her father, who had not been given the opportunity to respond. Since the school year was nearing its close, the principal didn’t believe there was time to remedy the problems with either article. As a result, he simply pulled them.

The Supreme Court ruled that the principal did not violate the student journalists’ First Amendment rights. The newspaper was funded by the school and operated as part of the school’s educational activities. The Court held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” And most of us would agree that journalistic integrity is a legitimate pedagogical concern.

The test is different when dealing with individual student speech that happens to occur on school premises or at school activities. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines School District, 393 U.S. 503 (1969). Nonetheless, a school is a special setting, and administrators can prohibit some behavior that would be covered by the First Amendment in a different context. In particular, the administration can discipline behavior that materially disrupts learning, interferes with the rights of other students, uses lewd or offensive language, or advocates criminal behavior.

Tinker shows one end of the spectrum—the one where the First Amendment trumps school action. In that case, the school warned and then suspended five students who wore black armbands to protest the Vietnam War. Although the armbands made some students uncomfortable, they did not interfere with schoolwork, disrupt classes, or produce any violence. The Supreme Court held that the administration’s actions violated the students’ First Amendment rights.

There are cases on the other end of the spectrum as well. In Bethel School District v. Fraser, 478 U.S. 675 (1986), the Court held that a school could discipline a student who used sexual innuendos during a school assembly. And in Morse v. Frederick, 551 U.S. 393 (2007), the Court upheld an action suspending a student for displaying a banner that could have been interpreted as advocating illegal drug use. What Morse added to Bethel was the context. Fraser made his comments on school grounds, while Frederick’s conduct occurred during a school outing.

The line is fuzzy, but one thing is clear. Students don’t lose all their First Amendment rights when they go to school, but they do lose some.

But you may be thinking, “What about all those cases involving religious activities in the schools. Why didn’t she mention them?”

Since this is a blog for writers, these monthly posts concentrate on the speech clauses of the First Amendment. Most of the school religion cases were decided under the religion clauses.

Still, there are cases in which the speech clauses intersect with the religion clauses. We’ll discuss that topic next month.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.