WASHINGTON, D.C. — Students, like everyone else, have a constitutional right to offend others with their speech, said Catherine Ross, law professor at George Washington University and author of the new book “Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights.”
Speaking at the Newseum on Monday in a conversation with Newseum Institute Chief Operating Officer Gene Policinski, Ross spoke about student expression and the First Amendment, touching on issues currently enveloping some campuses and high schools across the nation, like cyberbullying and students’ off-campus speech on their personal social media accounts.
The First Amendment contains an inherent right to offend, but schools often don’t grant students that right, she said.
In recent years, schools have cracked down on students’ social media use that is outside of school hours and off-campus. Many of those instances have resulted in lawsuits, and courts have been divided on how much authority schools have in their reach.
“It’s insane,” Ross said. “Are we communicating to our students that we are an authoritarian society, the authorities always win and they’re always in control, and we don’t mean what we say in the Bill of Rights?”
Policinski raised the question of the role of the school when it comes to exposing students to certain material that parents might find objectionable.
Ross said parents can send their children to private schools or homeschool them — but public schools have no responsibility to protect students from a certain belief system.
‘Who gets to inculcate values in children? The state during the day..’ @catherinejross_ #studentsspeakup
— Newseum Institute (@NewseumInst) November 9, 2015
With cyberbullying and harassment, Ross said she sees the federal government not only overstepping, but misdirecting in their messages to local schools. New regulations aren’t necessary, she said.
“First Amendment doctrine remains adaptable and flexible,” she said. “If harassment reaches that level of obnoxiousness and threats, then turn it over. Current laws will suffice if the problem reaches that level.”
Both Ross and Policinski noted a current trend that people feel they should be protected from offensive speech — and it is very disturbing, they said.
During an audience Q&A session, retired educator and journalist Dave Price said First Amendment issues bring up “ignorance and insanity.”
“We can’t really do anything about insanity, but we can do something about ignorance,” he said.
“Ignorance is a huge problem,” Ross said. “Most schools of education don’t even cover school law and those that do don’t necessarily cover First Amendment rights.”
Administrators, she said, cannot “cave into the pressure of the censorious.”
“You cannot silence speech to avoid controversy. Controversy is part of the Constitution.” @catherinejross_ @TheFIREorg #studentsspeakup
— Alex Morey (@AlexatFIRE) November 9, 2015
A history of student speech rights
Ross said the first major U.S. Supreme Court case involving students’ rights was West Virginia State Board of Education v. Barnette, which dealt with compulsory participation in the Pledge of Allegiance. The Court ruled in the students’ favor on free speech grounds and reversed a decision from three years prior. At the time, students were treated as juvenile delinquents if they refused to comply.
With the groundwork laid for student First Amendment rights by the Barnette court, Ross said the Tinker v. Des Moines Independent Community School District decision in 1969 affirmed “the life of the mind, the marketplace of ideas is nowhere more important than our schools.”
Still, Ross said, decisions to come over the next few decades would place limits on student speech that left open the possibility of more restrictions in the future, especially considering new and ever-present technology.
Ross said the Bethel School District v. Fraser case punched a small hole in Tinker, limiting speech that could be considered lewd. The case addressed student Matthew Fraser’s speech nominating a friend for student body vice president that included indirect but lewd references and double entendres.
The next major relevant Supreme Court case, 1988’s Hazelwood School District v. Kuhlmeier, chipped away at students’ First Amendment rights, she said. The court ruled that a school officials could censor student speech and expression if they determined a “reasonable educational justification” and if their censorship was viewpoint neutral.
(The Student Press Law Center has a campaign to “Cure Hazelwood,” with movements popping up across the country after North Dakota passed a law that reverts back to the Tinker standard.)
In 2002, a student was suspended from school for displaying a banner that said “BONG HiTS 4 JESUS.” His case, Morse v. Frederick, led to the Supreme Court deviating from the Tinker standard because the banner promoted illegal drug use, which can be restricted.
“Now some courts are applying this to anything that could encourage bad behavior,” Ross said.