Reflecting on the legal foundations of student free speech and expression

Constitution Day, Sept. 17, 2023. Including photos of SPLC swag featuring seven key student free speech and expression SCOTUS cases.

The First Amendment provides student journalists with the foundation to pursue critical work in their communities day in and day out: they report the stories that matter to their community, ensure transparency and accountability from decision-makers, fill local “news deserts” and so much more, all while maintaining their lives as students and navigating the world as young adults. 

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.


As Constitution Day (Sept. 17) approaches and as we reflect on this year’s Democracy Day (Sept. 15) theme –– “Empowering the next generation” –– we are once again reminded of the crucial nature of the First Amendment rights that enable student journalists to provide such an essential service to our democracy. 

Yet, despite the rights the First Amendment so clearly lays out, we are reminded each year that in this ever-changing media environment, coupled with increasing threats to both professional and student press freedom, this country still does not afford all student journalists many of those basic rights.

On this Constitution Day, as we continue fighting for a better future for student journalists, we at SPLC want to take this opportunity to look back at the foundational student free speech and expression Supreme Court cases that helped shape the current legal landscape. 

For student journalists and advisers across the U.S., learning about these key cases is an excellent first step to help you better understand the state of student press freedom and to inform you in your fight against student media censorship.

Show your support for the First Amendment heroes 

Photo of SPLC's new tee shirt design listing the key Supreme Court cases.

Whether the Court affirmed their First Amendment rights or not, these seven cases represent students who bravely stood up for their essential rights to free speech and expression. One way you can show support for student press freedom advocates is through SPLC’s store; a portion of your purchases go to SPLC to help fund our work supporting bold and brave student leaders and journalists every day.

Interested in reading about more cases affecting student free press and expression rights? We’ve compiled dozens by topic in the SPLC Law Library. And, if you want to take a deeper dive into any of these cases, you can bring an SPLC expert into your classroom or newsroom virtually to chat about a media law topic of your choice with SPLC in the Classroom

Tinker v. Des Moines (1969)

The Tinker case is the most important case to uphold student free speech rights. After school officials suspended Mary Beth Tinker, her brother John and her brother’s friend Chris Eckhardt for wearing black armbands to school to protest the Vietnam War, the Supreme Court held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” School officials may not punish or prohibit student speech unless they can clearly demonstrate that it will result in a material and substantial disruption of normal school activities or invade the rights of others.

Key Takeaway: Public school students maintain their First Amendment rights within a school’s jurisdiction, though school officials retain authority to maintain a safe and effective school environment.

Healy v. James (1972)

This is a notable case specifically for college students. In this case, the Supreme Court sided with students from Central Connecticut State College, agreeing that their First Amendment rights were violated when officials refused to recognize their radical student group as an official student organization. 

Key Takeaway: Pointing to Tinker, which focused on the rights of public secondary school students, the Court held that “the college classroom and its surrounding environs is peculiarly the ‘marketplace of ideas.” Indeed, according to the Court, First Amendment protections should apply on college campuses the same as in the community at large.”

Papish v. Board of Curators of the University of Missouri (1973)

This is another big college case: The University of Missouri expelled student Barbara Papish after distributing a self-published newsmagazine, Free Press Underground, that contained political cartoons the university claimed were “indecent.” Though the district court and the Eighth Circuit Court of Appeals went back and forth about whether Papish’s rights were violated, the Supreme Court eventually held that because the cartoons were not legally obscene or otherwise unprotected by the First Amendment, the college could not punish Papish for the content of her independent speech.

Key Takeaway: Pointing to Tinker, which focused on the rights of public secondary school students, the Court held that “the college classroom and its surrounding environs is peculiarly the ‘marketplace of ideas.” Indeed, according to the Court, First Amendment protections should apply on college campuses the same as in the community at large.”

Bethel School District v. Fraser (1986)

During his speech at a mandatory high school assembly nominating a fellow student for a seat in student government, Matthew Fraser used a number of sexually suggestive double entendres in his speech. Officials claimed the speech was “indecent, lewd and offensive,” — and also “vulgar,” “inappropriate,” “obscene” (neither they nor the Court ever really settled on what to call it) — for which they suspended Fraser for three days and did not allow him to speak at commencement. 

While the U.S. District Court for the Western District of Washington and the 9th Circuit Court of Appeals, citing Tinker, found that the district violated Fraser’s rights, the Supreme Court reversed, holding that “[t]he pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students indeed to any mature person,” and that his speech was “wholly inconsistent with the ‘fundamental values’ of public school education.”

Key Takeaway: The First Amendment does not prohibit school officials from sometimes restricting public high school students from using vulgar and lewd sexually provocative speech, particularly when given to a captive student audience in a school-sponsored setting.

Hazelwood v. Kuhlmeier (1988)

While the Tinker case is the shining star of student free speech cases, the vague legal standard that resulted from the Hazelwood decision makes this one of the most significant losses for students’ rights to free speech and expression. It’s also the only case specifically targeting high school student journalists and the one we at the Student Press Law Center have been working for more than three decades to fix, including pushing for the adoption of so-called state New Voices laws

At Hazelwood East High School outside St. Louis, the principal prevented student journalists from publishing a special teen issue section of their newspaper that included articles on teen pregnancy and the impact of divorce on students because he found the topics and articles “inappropriate.” The Supreme Court held that the principal’s censorship did not violate the student journalists’ rights because it was a high school-sponsored newspaper produced as part of a class and without a “policy or practice” establishing it as a public forum for student expression. 

  • Key Takeaway: The Supreme Court really muddied the legal waters with this case and its impact on American student media has been profound for three key reasons:
  • First, it doesn’t apply to student media that have established themselves — by policy or practice — as public forums, which requires a fairly complicated and often imprecise legal analysis.
  • Second, where there is a history of school control, administrators can only censor school-sponsored student media when they can show their censorship is “reasonably related to legitimate pedagogical concerns,” a “standard” that is so vague and problematic that both students and school officials have struggled to understand where the lines are drawn between protected and unprotected speech.
  • Third, the Court left open the question of whether the standard applies in the college setting and lower courts have come to different conclusions.

Spot censorship when it happens

Although the Hazelwood decision created some student media censorship loopholes, that doesn’t mean all cases of censorship are actually legal. SPLC stands ready to provide guidance. Here are some top resources to help you spot censorship when you see it and get the support you need to stand up against it:

  • For a more detailed breakdown of the Hazelwood decision, check out our comprehensive case guide
  • Are you experiencing censorship or have questions about possible censorship? Get legal guidance by contacting SPLC’s free legal hotline.
  • Are you able to spot self-censorship? Take our quiz to learn more about what self-censorship looks like, and how to better identify it.

Morse v. Frederick (2007)

If you haven’t heard of the infamous “BONG HiTS 4 JESUS” case, well, now you have. When the 2002 Olympic Torch Relay passed through town, students at an Alaskan high school were allowed to leave class and watch. Across the street from the high school, on a public sidewalk, student Joseph Frederick led a group of students that held up a 14-foot banner that read “BONG HiTS 4 JESUS,” resulting in his suspension from school. Despite Frederick not being on school property at the time of the incident, the Supreme Court held that the school’s punishment did not violate Frederick’s rights because it was reasonable to conclude that the banner conveyed a message promoting illegal drug use during a “school-sanctioned activity.” 

Key Takeaway: The First Amendment permits administrators to “restrict speech that a reasonable observer would interpret as advocating illegal drug use” during a school-sponsored or school-sanctioned event.

Mahanoy v. B.L. (2021)

High school student Brandi Levy failed to make the varsity cheerleading team and was frustrated. So — on a Saturday afternoon using her own phone and her private Snapchat account while at an off-campus convenience store — she posted a photo extending her middle finger along with saying “Fuck school fuck softball fuck cheer fuck everything.” 

After viewing the video, the cheerleading coach kicked Levy off of the team. The Supreme Court held that the school did violate Levy’s First Amendment rights, but the court didn’t provide a broad rule defining when schools can restrict off-campus speech. 

Key Takeaway: The Court’s rather timid opinion probably creates more questions than it answers, but it does remind school officials that — in most cases (and probably in all cases where students are engaged in bona fide journalism) — they have no authority to regulate or punish students for their off-campus speech, including online speech that might find its way onto campus.

Take action for student press freedom this Constitution Day!

Did you know that 17 states have what we call New Voices laws? These laws effectively counteract the Supreme Court’s Hazelwood v. Kuhlmeier (1988) decision and the vague and unworkable standard that it set. Join the New Voices movement to help us restore and protect student journalists’ First Amendment rights in every state!