1. Speech Clauses VI (Student Speech)
Lecture 18 Chapter 5
Speech Clauses VI
(Student Speech)

2. This Lecture More on the First Amendment Pages 258-267 Student Speech
Tinker v. Des Moines Independent Community School District (1969)
Morse v. Frederick (2007)

3. Tinker v. Des Moines Independent Community School District (1969)
Background
During the Vietnam War, students in Des Moines announced they would wear black armbands to protest the war
The school finds out and said that students that would do so would be suspended
The Tinker children and three others worse the armbands and were suspended
The ACLU represented them when they filed suit against the school district
The U.S. District Court and the 8th Circuit upheld the suspensions

4. Tinker v. Des Moines Independent Community School District- II
Arguments
For Tinker and Eckhardt
The First Amendment applies to speech in schools
The prohibition of the schools was a prior restraint
The armbands caused no issues
For the Des Moines School District
Schools have wide discretion in their policies
They considered these armbands akin to demonstrations
Rights in schools should not be judged by the same standard as adults

5. Tinker v. Des Moines Independent Community School District- III
Fortas, J. for a 7-2 Court
There were concurrences by Stewart and White
Symbolic speech akin to pure speech
First Amendment rights are applicable to students in schools
There is no record of any disruption caused by the armbands
In order to suppress school speech: "materially and substantially interfere“ with the operation of the school
This seemed to be based on perceived disruption rather than real disruption
It seemed the school had allowed other symbols of political expression, and that they had singled out this one

6. Tinker v. Des Moines Independent Community School District- IV
Black, J. dissenting
His absolutism has limits does not apply to any where and when
"While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases."
The purpose of the order was to give students the opportunity to lean
Potentially subjects students to the loudest mouths
Students attend to learn, not teach it surrendered the schools to the students
Would give decision making back to local officials
Harlan, J. dissenting
Also would give wide latitude to school officials
Stewart, J. noted that school children do not have the same rights as adults but still voted to reserve the suspensions

7. Bethel School District No. 403 v. Frasier (1986)
The student in question gave a speech at a school assembly laced with very sexually suggestive references
He referred to male erections and sexual acts
“I know a man who is firm – he's firm in his pants”
“Jeff Kuhlman is a man who takes his point and pounds it in”
But didn’t formally refer to them
He was suspended for three days for violating policy against lewd, obscene, profane language or gestures (he had been warned by teachers not to do this!)
His suspension was upheld by a 7-2 ruling by Burger, C.J.
Schools can punish vulgar and lewd speech
The punishment was not for the political content of the expression

8. Morse v. Frederick (2007) Background
The Winter Olympic torch was coming through Juneau
The school allowed for students to see this as a school activity
Frederick and others raised up a banner saying “Bong Hits for Jesus”
The principal ordered the sign to be taken down, but he refused
He was suspended for 10 days on the grounds that he was violating a school policy promoting illegal drug use
The Superintendent and district court upheld the suspension
However the 9th Circuit reversed finding no substantial risk of disruption

9. Morse v. Frederick- II Arguments For Morse and the school district
Previous decisions allow punishment for disruptive speech or counter to education mission
Illegal drug use is not part of the school’s mission and wanted to be disassociated with it
The sign changed the nature of the school event
For Frederick
This was displayed off school property
It was non-disruptive
He was being punished for the content of the sign

10. Morse v. Frederick- III Roberts, C.J. for a 5-4 Court
The majority rejects that this was not a school speech case
It was during regular hours and school sanctioned
They agree with the principal that it was meant to promote illegal drug use
Despite Frederick saying he just wanted to get on television
Failure to act could have been seen as an endorsement of this message
Drawing off Fraser
The constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings “in light of the special characteristics of the school environment“
This also applies to search and seizure (a lot)!
 The "substantial disruption" analysis prescribed by Tinker "is not absolute”

11. Morse v. Frederick- IV The concurrences Thomas, J. concurring
He would formally overrule Tinker
He thinks student speech in schools is not protected under the First Amendment
He thinks the redress is protesting to a local school board
Calls Justice Black prophetic that this has undermined respect and authority for public school teachers
Alito, J. joined by Kennedy, J. concurring
They emphasized their concurrence was limited
To only advocating illegal drug use being punished
This would not apply to political speech on the legalization of marijuana

12. Morse v. Frederick- V
Stevens, J. joined by Souter and Ginsburg, JJ. dissenting
They criticize the majority for not fully following Tinker
Say that this test invites future viewpoint discrimination
They thought the message was pro-drug in the political realm
Akin to silencing Vietnam era protesters
There was no proof of this message inciting imminent lawless action
Breyer, J. concurred and dissented on non constitutional grounds of qualified immunity

13. Next Lecture More on the First Amendment Pages 267-276
The Right Not to Speak
West Virginia State Board of Education v. Barnette (1943)
Pledge of Allegiance
Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006)
Protest of Don’t Ask Don’t Tell