are students protected by the first amendment essay

The First Amendment in Schools

The first amendment protects both students and teachers in schools..

NCAC presents the following collection of materials on the topic of censorship in schools for the use of students, educators, and parents everywhere. This information is not intended as legal advice. If you face a censorship controversy, the resources below can offer guidance. If you need additional assistance, please contact us . We will keep your information confidential until given permission to do otherwise.

NOTE: Guide for Student Protesters available here

Introduction: Free Speech, Public Education, and Democracy

The First Amendment and Public Schools A. The First Amendment B. The Public Schools 1. School Publications: Student Newspapers and Yearbooks 2. Off-Campus Publications 3. Hair, Dress, and Appearance 4. Gang Symbols and Insignia 5. Off-Campus Speech

Censorship A. Understanding Censorship B. Distinguishing Censorship from Selection C. Consequences of Censorship

How Big a Problem Is Censorship? A. The Numbers B. What Kind of Material Is Attacked? C. What Does “Age Appropriate” Mean? D. Who Gets Censored?

Roles and Responsibilities A. School Officials, Boards and State Mandates B. Principles Governing Selection and Retention of Materials in Schools C. Complaint Procedures

Censorship Policies National Education Association (NEA) The National Council of Teachers of English and the International Reading Association (NCTE/IRA) Association for Supervision and Curriculum Development (ASCD) American Library Association (ALA) National Association of Elementary School Principals (NAESP) National Coalition Against Censorship (NCAC)

Introduction: Free Speech, Public Education, and Democracy

Purpose of the Resource Guide: The First Amendment safeguards the rights of every American to speak and think freely. Those rights are central to the educational process and are equally important to educators and students.

For teachers and administrators: The First Amendment protects teachers when they exercise their judgment in accordance with professional standards, making it possible for them to create learning environments that effectively help young people acquire the knowledge and skills needed to become productive, self-sufficient, and contributing members of society.

For students: The First Amendment protects students’ ability to think critically and learn how to investigate a wide range of ideas. Students have the right to express their beliefs, just like any other citizen. Protecting students’ rights to read, inquire and express themselves is critical to educating informed, engaged citizens.

This guide describes in practical terms what the right to freedom of expression means for students, teachers and administrators in public schools.

Free Speech, Public Education, and Democracy: Our founders considered public schools to be one of the vital institutions of American democracy. But they also knew that education involves more than reading, writing, and arithmetic. Education in a democratic society requires developing citizens who can adapt to changing times, decide important social issues, and effectively judge the performance of public officials. In fulfilling their responsibilities, public schools must educate students on core American values such as fairness, equality, justice, respect for others, and the right to dissent.

Rapid social, political, and technological changes have escalated controversy over what and how schools should teach. References to sexuality, profane language, descriptions of violence and other potentially controversial material have raised questions for generations of parents and educators. Addressing those questions is even more complicated now, when most school communities are made up of individuals with differing backgrounds, cultural traditions, religions, and often languages. With students and parents bringing a range of expectations and needs to the classroom, educators are challenged to balance the educational needs of an entire student body while maintaining respect for the individual rights of each member of the school community.

The First Amendment can help resolve this tension. It defines certain critical rights and responsibilities of participants in the educational process. It both protects the freedom of speech, thought, and inquiry, and requires respect for the right of others to do the same. It requires schools to resort to “ more speech not enforced silence ” in seeking to resolve our differences.

The First Amendment and Public Schools

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. -First Amendment of the United States Constitution ratified December 15, 1791

A. The First Amendment

The first provision of the Bill of Rights establishes the rights essential to a democratic society and most cherished by Americans: the right to speak and worship freely, the right to assemble and to petition the government, and the right to a free press. Although most countries purport to guarantee freedom of expression, few provide the level of protection for free speech that the First Amendment guarantees.

The potential for tyranny by the state and abuse of government authority particularly worried framers of the Bill of Rights. Thus, the language of the First Amendment begins by prohibiting certain government conduct –i.e., “Congress shall make no law respecting….” Like most of the Constitution, these limitations control only what the government may do, and have no effect on private individuals or businesses. Although the Bill of Rights originally limited only the power of the federal government, the Fourteenth Amendment extended the limits imposed by most of the Bill of Rights to state and local governments as well. Since public schools and public libraries are part of state and local government, they must follow the First Amendment as well as many other provisions of the Constitution. However, as this manual will make clear, the First Amendment applies somewhat differently to schools than it does to many other public institutions.

B. The Public Schools

Public schools are institutions which in some respects most embody the goals of the First Amendment: to create informed citizenry capable of self-governance. As many commentators have observed, a democracy relies on an informed and critical electorate to prosper. As Noah Webster observed in 1785: “It is scarcely possible to reduce an enlightened people to civil or ecclesiastical tyranny.” And on the eve of the Constitutional Convention in 1787, Benjamin Rush stated that “to conform the principles, morals, and manners of our citizens to our republican form of government, it is absolutely necessary that knowledge of every kind should be disseminated through every part of the United States.” Not surprisingly, universal access to free public education has long been viewed as essential to democratic ideals.

America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. Schools, however, can sometimes limit students’ right to free speech and expression when necessary to achieve legitimate educational goals. As the Supreme Court put it in Mahanoy Area School District v. B. L. (2021):

Schools have many responsibilities: They must teach basic and advanced skills and information; they must do so for students of different backgrounds and abilities; they must teach students to work independently and in groups; and they must provide a safe environment that promotes learning.

Given these multiple responsibilities, school officials have wider discretion than other state actors in regulating certain types of speech. For example, they can forbid profane speech on campus (according to Bethel School District v. Fraser (1986 )) and can punish students for advocating illegal drug use (as in Morse v. Frederick (2007)). They can also censor student speech in school publications, such as school newspapers and yearbooks, see Hazelwood School District v. Kuhlmeier (1988). More importantly, schools can censor student speech which is likely to substantially disrupt school operations ( Tinker v. Des Moines Independent Community School District (1969)). Therefore, speech is not quite as free inside schools as it is outside.

However, the limits on student speech are quite narrow, and in general, students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” (Tinker v. Des Moines ) See below for examples of how the First Amendment applies to schools in specific ways .

1. School Publications: School Newspapers and Yearbooks

The Supreme Court has ruled that student journalists have very limited rights when they write for school-sponsored publications such as school newspapers and yearbooks. The school can censor articles for many reasons, including because school officials think that the subject is inappropriate. Some courts have even said that schools can censor editorials because school officials disagree with the views expressed in them.

However, several states have laws which give greater protection to student journalists. A list of those states and links to descriptions of their legislation can be found here .

2. Off-campus Publications: “Underground’ Newspapers, Websites, Etc.

Concerns about censorship in “official” school papers may prompt students to publish material produced outside of school, or on websites maintained privately without use of school facilities. Some schools have attempted to censor these publications and suppress off-campus speech they find offensive, disturbing, or unflattering. However, courts have been willing to uphold school censorship of off-campus speech only in unusual circumstances in which the speech has a very high likelihood of substantially disrupting school (such as by publishing answers to tests) or harming particular persons (such as by harassing or threatening them).

Unlike student speech in school, student speech off campus cannot be punished just because it includes profanity, or advocates illegal drug use, or for any reason other than it is very likely to substantially disrupt school. In particular, schools have limited ability to punish or censor off-campus speech about politics or religion. If an independent student publication is distributed on campus, school officials have a bit more power to confiscate or ban it, but only if there is a risk that it will cause substantial disruption of the school.

Student rights can often be limited if students use school resources (such as school computers or the school’s internet service) to create or distribute publications. Students can help avoid conflict with school officials by ensuring their unofficial publications are produced and maintained separately from any school course and without school materials or teacher assistance.

Also, it is important for students who use their school’s technology to know their school’s “Acceptable Use Policy” (AUP). An AUP, which is often found in district guidelines or in a student handbook, sets out the rules and regulations governing student use of school computer networks. Some sample acceptable use policies can be found here , but your school’s policy might be different in some ways.

3. Hair , Dress, and Appearance

Since the Tinker case in 1969, students, school administrators, and courts have struggled with the boundaries and limits of student dress and grooming requirements. Beginning in the early 1970s, the courts were inundated with cases that confronted the issue, and have found few clear answers. The circuit courts remain split over the control school administrators can exercise with respect to student dress and grooming. The issue often is complicated by gender and guidelines that reinforce rigid binaries. In one case, a school disciplined a boy for wearing an earring, although earrings are permitted under the dress code for girls. Other examples are hair length restrictions for boys but not girls, or dress requirements designed to enforce notions of modesty for girls but not boys. Some public schools have required uniforms, but this has hardly solved the problem, as strict dress codes of this sort are often challenged. In contrast, gender-neutral guidelines about appropriate dress rarely result in challenges.

4. Gang Symbols and Insignia

Since gang members often identify themselves through clothes and insignia, principals have often turned to dress codes in an effort to discourage gang membership and activities. Courts have generally held that these codes are valid.

5. Off-Campus Speech

In recent years, there s been an increasing number of cases involving off-campus student speech which has effects on-campus. Often, that speech takes place on social media. Schools cannot punish students for profane speech that takes place off-campus (except during a field trip, which courts consider part of the school). Nor can they punish students for off-campus speech which advocates illegal drug use. However, schools can sometimes punish students for off-campus speech which has a strong chance of coming on campus and disrupting school, such as racist speech when the school has a history of racial conflict. And, schools can of course punish students for off-campus speech that harasses students or school employees, or which threatens violence against the school.

A. Understanding Censorship

Censorship is the suppression of speech or other expression that the censor (a person or institution with the power to suppress speech) does not like.

Parents and community groups often try to remove school materials that discuss sexuality, religion, race, or ethnicity–whether directly or indirectly. For example, some people object to the teaching of Darwin’s theory of evolution in science classes because it conflicts with their own religious views. Others think schools should not allow discussion about sexual orientation or gender identities, and other people call for eliminating The Adventures of Huckleberry Finn from the English curriculum because they think it is racist.

As these examples show, demands for censorship originate across the entire spectrum of religious, ideological, and political opinion.

When people ask schools to censor materials, schools must balance their First Amendment duties against other concerns, such as maintaining the integrity of the educational program, meeting state education requirements, respecting the judgments of professional staff, and addressing deeply held beliefs in students and members of the community. In dealing with challenges to materials, educators are on the strongest ground if they are mindful of two fundamental principles that the Supreme Court has repeatedly recognized: 1) schools have broad power to decide what and how to teach, as long as their decisions are based on sound educational principles and are aimed at improving student learning; and 2) the decisions that are most vulnerable to legal challenge are those that are motivated by hostility to an unpopular or controversial idea, or by the desire to force acceptance of a particular viewpoint.

Pursuant to these principles, when someone claims in a lawsuit that a school’s actions violate the First Amendment, courts generally defer to the professional judgments of educators. That means that courts will often uphold a decision to remove a book or to discipline a teacher, if the decision serves legitimate educational objectives, including administrative efficiency. However, it is equally true that schools which reject demands for censorship are on equally strong or stronger grounds. As the Supreme Court stated in its 2021 Mahanoy decision, schools have a strong interest in protecting unpopular expression, in exposing students to a wide range of views, and in giving students the opportunity to discuss those views.

Therefore, it is extremely unlikely that a school official who relied on these principles and refused to accede to pressures to censor something with educational value would ever be ordered by a court of law to do so.

B. Distinguishing Censorship from Selection

Schools make decisions all the time about which books and materials to include in or exclude from the curriculum. Hence, they are not violating the First Amendment every time they cross a book off a reading list. However, they could be acting unconstitutionally if they decide to remove a book solely because of hostility to the ideas it contains.

For example, administrators and faculty might agree to take discussion of evolution out of the second grade curriculum because the students lack sufficient background to understand it, and decide to introduce it in the fourth grade instead. As long as they are not motivated by hostility to the idea of teaching about evolution, this would not ordinarily be problematic. The choice to include the material in the fourth grade curriculum tends to demonstrate this was a pedagogical judgment, not an act of censorship.

However, not every situation is that simple. For example, objections to material dealing with sexuality or sexual orientation commonly surface in elementary schools and middle schools when critics claim that such material is not “age appropriate” for those students. Often, it becomes clear that their concern is not that students will not understand the material, but that they simply do not want the students to have access to that type of information. If professional educators can show a legitimate pedagogical rationale for maintaining such material in the curriculum, it is unlikely that an effort to remove it will be successful.

Moreover, while individual parents have considerable control over their own child’s education and can request their child be given a different book, they have no right to impose their preferences on other students and their families.

C. Consequences of Censorship

Censorship based on individual sensitivities and concerns restricts the world of knowledge available to students. Based on personal views, some parents wish to eliminate material depicting violence, others object to references to sexuality, others to speech about racial issues or images that offend them. Some parents oppose having their children exposed to fiction that doesn’t have a happy ending, teach a moral lesson, or provide positive role models. If these and other individual preferences were legitimate criteria for censoring materials used in school, the curriculum would narrow to including only the least controversial and probably least relevant and interesting material. It would hardly address students’ real concerns, satisfy their curiosity, or prepare them for life.

Censorship also harms teachers. By limiting resources and flexibility, censorship hampers a teacher’s ability to explore all possible avenues to motivate and “reach” students. By curtailing ideas that can be discussed in class, censorship takes creativity and vitality out of the art of teaching. Instruction is reduced to bland, formulaic, pre-approved exercises carried out in an environment that discourages the give-and-take that can spark a student’s enthusiasm for learning. To maintain spontaneity in the classroom setting, teachers need latitude to respond to unanticipated questions and discussion, and the freedom to draw on their professional judgment and expertise, without fear of consequences if someone objects, disagrees, or takes offense.

School censorship is particularly harmful because it prevents young people with inquiring minds from exploring the world, seeking truth and reason, stretching their intellectual capacities, and becoming critical thinkers. When the classroom environment is not open and inviting, honest exchange of views is replaced by guarded discourse, and teachers lose the ability to reach and guide their students effectively.

How Big a Problem Is Censorship?

A. The Numbers

The American Library Association (ALA), which tracks and reports censorship incidents, reports that there are hundreds of challenges in schools and public libraries every year. ALA estimates that roughly four or five times as many go unreported.

B. What Kind of Material Is Attacked?

ALA offers an instructive analysis of the motivation behind most censorship incidents:

The term censor often evokes the mental picture of an irrational, belligerent individual. Such a picture, however, is misleading. In most cases, the one to bring a complaint to the library is a concerned parent or a citizen sincerely interested in the future well-being of the community. Although complainants may not have a broad knowledge of literature or of the principles of freedom of expression, their motives in questioning a book or other library material are seldom unusual. Any number of reasons are given for recommending that certain material be removed from the library. Complainants may believe that the materials will corrupt children and adolescents, offend the sensitive or unwary reader, or undermine basic values and beliefs. Sometimes, because of these reasons, they may argue that the materials are of no interest or value to the community.

While demands for censorship can come from almost anyone and involve any topic or form of expression, most incidents involve concerns about sexual content–specifically LGBTQ+ content–religion, profanity, or racial slurs. Many incidents involve only one complaint, but nonetheless trigger a review process that can become contentious. Parents who support free expression do not step forward to participate in public discussions as frequently as those seeking to remove materials, leaving school officials and teachers relatively isolated. It is then their task to assess the pedagogical value of the materials carefully. If they give in to viewpoint-based demands, they can undermine educational objectives, as well as encourage more challenges.

C. What Does “Age Appropriate” Mean?

One of the most common demands for censorship involves the claim that certain school materials are not “age appropriate.”

Educators generally use the term “age appropriate” when they mean the point at which children have sufficient life experience and cognitive skills to comprehend certain material. For example, educators may decide that detailed scientific information about human reproduction may not be age-appropriate for six-year-olds but would be understood by 12-year-olds who have been introduced to basic biology.

However, when censors complain that a book is not “appropriate,” they often mean that students shouldn’t be exposed to the material for reasons of personal ideology or belief. The objection usually occurs when the material concerns sexuality and often reflects a fear that exposure to it will undermine moral or religious values. Acceding to the pressure to censor in this situation can be tantamount to endorsing one moral or religious view over another.

Responding to questions about age appropriateness, the National Council of Teachers of English noted that “materials should be suited to maturity level of the students,” and that it is important to “weigh the value of the material as a whole, particularly its relevance to educational objectives, against the likelihood of a negative impact on the students… That likelihood is lessened by the exposure the typical student has had to the controversial subject.”

D. Who Gets Censored?

The books targeted by censors include both popular and classic titles, affecting choices made by almost every age group. The ALA’s list of most challenged books in 2020 includes:

George by Alex Gino
Stamped: Racism, Antiracism, and You by Ibram X. Kendi and Jason Reynolds
All American Boys by Jason Reynolds and Brendan Kiely
Speak by Laurie Halse Anderson
The Absolutely True Diary of a Part-Time Indian by Sherman Alexie
Something Happened in Our Town: A Child’s Story About Racial Injustice by Marianne Celano, Marietta Collins, and Ann Hazzard, illustrated by Jennifer Zivoin
To Kill a Mockingbird by Harper Lee
Of Mice and Men by John Steinbeck
The Bluest Eye by Toni Morrison
The Hate U Give by Angie Thomas

Some of these titles appear on the ALA’s list of most challenged works year after year. For example, The Absolutely True Diary of a Part-Time Indian has made the list eight times since 2010; George has been on the list every year since 2016, and has been the most challenged book each of the last three years. To Kill a Mockingbird , Of Mice and Men, and The Bluest Eye have appeared periodically on the list for two decades or more.

E. The Chilling Effect

Censorship often leads directly to self-censorship. It occurs every day. Sometimes it’s obvious even if no one uses the “c” word. Sometimes it is more insidious (and less justified)–for example, when a teacher decides not to use a particular story or book or a librarian doesn’t order a particular magazine because of fears about possible complaints. It is impossible to quantify the damage that self-censorship does to education. But it is common enough to have its own name: ”the chilling effect.” This is the idea that restricting access to information based on particular viewpoints will discourage the use of potentially controversial (or even complicated) material in the future, that teachers, for example, will avoid teaching a book just because they don’t want to risk the disruption a formal complaint would cause, even if they truly believe that book would be an excellent educational choice.

Roles and Responsibilities: Promoting First Amendment Values at School

A. School Officials, Boards, and State Mandates

The school board’s role is to define an educational philosophy that serves the needs of all its students and reflects community goals. In this process, most districts see a role for parents and other community members. Educational advisory boards can also assist educators in discerning the needs and perspectives of the community. Open school board meetings can keep the public informed about the school district’s educational philosophy and goals, encourage comments, questions and participation, and increase community support for the schools. Although public debate about the educational system provides opportunities for community input and can assist educators in developing materials to meet students’ needs and concerns, actual curriculum development and selection are tasks uniquely suited to the skills and training of professional educators. Hence, school boards should defer to the judgment of review committees composed of educators when making decisions about curricular materials.

While curriculum development relies heavily on the professional expertise of trained educators, it is also controlled by state education law and policy. Educators’ choices are influenced by factors such as competency standards, graduation requirements, standardized testing, and other educational decisions made at the state level.

B. Principles Governing Selection and Retention of Materials in Schools

School officials have the constitutional duty to ensure that curriculum development and selection decisions are made without attempting to advance any particular political or religious viewpoint. School districts otherwise have broad discretion when selecting classroom instructional materials.

In contrast, policies governing school libraries and classroom resource materials place a priority on including a wider range of materials. The ALA Library Bill of Rights (1948) recognizes the library’s essential role in providing resources to serve the “interest, information, and enlightenment of all people of the community.” With minor modifications, these principles also apply in the school setting.

The considerations specifically relevant to school libraries are identified by National School Board Association guidelines:

To provide materials that will enrich and support the school’s curricula;
To provide materials that will stimulate knowledge, growth, literary appreciation, aesthetic values, ethical standards, and leisure-time reading;
To provide information to help students make intelligent judgments;
To provide information on opposing sides of controversial issues so that students may develop the practice of critical reading and thinking; and
To provide materials representative of the many religious, ethnic, and cultural groups that have contributed to the American heritage.

The ALA believes that library materials “should not be proscribed or removed because of partisan or doctrinal disapproval.”

C. Complaint Procedures

All school districts should adopt formal policies and procedures for responding to complaints about materials. Formal policies clarify how the complaint process works; help faculty, staff, and administration fulfill their legal obligations; let parents and students know what criteria are used for removing materials and how they are applied; ensure that all voices are heard and considered; and protect the academic freedom of teachers.

When materials are challenged, schools with a well-articulated process for handling complaints are more likely to resist viewpoint-based censorship pressures than districts without one. Having a policy in place, and following it scrupulously, ensures that complainants will receive due process, and that challenged materials will be judged on their educational merits rather than personal opinions. It is important for teachers and administrators to be familiar with these policies and understand their importance. Armed with this knowledge, school officials are less likely to submit to pressure or react with unilateral decisions to remove books.

The most effective complaint procedures provide that:

Complaints must be made in writing.
Complainants should identify themselves both by name/address and by their interest in the material (i.e. , as a parent, student, religious leader, etc.).
Complainants must have read/seen the entire work objected to.
The complaint must be specific about the reasons for the objection.
Complaints should request a specific remedy (i.e., an alternative assignment for a student, or removal/exclusion affecting the entire school community).
Complaints, standing alone, will not be considered grounds for disciplining teachers or librarians.
Complaints are adjudicated by a diverse committee of stakeholders, including teachers, administrators, parents, and students.
Challenged materials remain in the curriculum/library until the challenge is adjudicated and all appeals are completed.

A list of model policies is available here .

It is advisable for policies to contain a statement supporting intellectual and academic freedom, and an explanation of the importance of giving students access to a wide variety of material and information, some of which may be considered controversial. The policy should also specify that viewpoint-based concerns – disagreement with a specific idea or message, and personal objections to materials on religious, political, or social grounds – do not justify removal of a book or other material. Such concerns may, however, justify a parent’s request that his or her child be assigned alternate material. These principles, if uniformly and consistently implemented, protect students’ right to learn. They also make it possible for educators to exercise their professional judgment, and help insulate them and the school district from legal challenge and community pressure.

In order to prepare for challenges, educators should do all of the following:

School administrators and teachers should work together to develop an understanding about how they will respond if material is challenged, recognizing that it is impossible to predict what may be challenged.
Educators should have a rationale for the materials they use, especially when they think some of it is potentially controversial.
In approaching material that may be controversial, keep parents advised about what material students are using and why it has been selected.
Encourage parents with questions about curricular materials to address them to their child’s teacher, and encourage teachers to be willing and available to discuss concerns with parents.
Schedule regular meetings for parents. In one innovative program in South Carolina, librarian Pat Scales invited parents to the library once a month, without students, to discuss contemporary young adult books that their children might be reading, to understand how the books helped their children grow intellectually and emotionally, and to encourage parents to use the discussion of books to spark conversation with their children. As a result, she never had a censorship problem, and she became a resource for parents seeking books to help their children address troublesome issues. (Pat Scales’ book, Teaching Banned Books (ALA, 2001) describes this program in detail.)
Involve members of the community in any debate over challenged materials. Broadening the discussion usually reveals that only a small number of people object to the same book at the same time.
Support the value of intellectual and academic freedom. Conscientious teachers who are caught in a censorship dispute deserve support from their colleagues and the community. Otherwise, teachers will stick to the tried and true or the bland and unobjectionable.

For more advice on how teachers can safeguard their selection of instructional materials from successful challenges, see NCAC resources for teachers and administrators here .

Censorship Policies

Major Educational Organizations Take a Stand for the First Amendment

Many national and international organizations concerned with elementary and secondary education have established guidelines on censorship issues. While each organization addresses censorship a little differently, each is committed to free speech and recognizes the dangers and hardships imposed by censorship. The organizations couple their concern for free speech with a concern for balancing the rights of students, teachers, and parents. Many place heavy emphasis on the importance of establishing policies for selecting classroom materials and procedures for addressing complaints. The following summarizes the censorship and material selection policies adopted by leading educational organizations.

National Education Association (NEA)

the national council of teachers of english and the international reading association (ncte/ira).

An 80,000-member organization devoted to improving the teaching and learning of English and the language arts, the NCTE offers support, advice, and resources to teachers and schools faced with challenges to teaching materials or methods. The NCTE has developed a Statement on Censorship and Professional Guidelines recognizing that English and language arts teachers face daily decisions about teaching materials and methods.

Founded in 1974, NCAC is an alliance of over 50 national non-profit organizations–including literary, artistic, religious, educational, professional, labor, and civil liberties group–united in their support of freedom of thought, inquiry, and expression. NCAC works with teachers, educators, writers, artists, and others around the country dealing with censorship debates in their own communities; it educates its members and the public at large about the dangers of censorship and how to oppose them; and it advances policies that promote and protect freedom of expression and democratic values. For specific advice on strengthening your book selection procedures and resisting censorship, submit a Censorship Report to NCAC at ncac.org/report-censorship .

Introduction | The First Amendment and Public Schools | Censorship | How Big a Problem…

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Douglas, Frederick “Narrative of the life of Frederick Douglass, an American slave” Boston, Anti-Slavery Office, 1849. pp. 100-102.
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FIRE. “NEW SURVEY: Majority of college students self-censor, support disinvitations, don’t know hate speech is protected by First Amendment.” FIRE, 11 Oct. 2017, www.thefire.org/new-survey-majority-of-college-students-self-censor-supportdisinvitations-dont-know-hate-speech-is-protected-by-first-amendment/. Accessed 8 Dec 2019.
FIRE. “Student Attitudes Free Speech Survey.” FIRE, 8 Jun. 2017, www.thefire.org/research/ publications/student-surveys/student-attitudes-free-speech-survey/student-attitudes-free-speech-survey-full-text/. Accessed 8 Dec 2019.
O’Kelley, Elijah. “State Constitutions as a Check on the New Governors: Using State Free Speech Clauses to Protect Social Media Users from Arbitrary Political Censorship by Social Media Platforms.” Emory Law Journal, vol. 69, no. 1, Dec. 2019, pp. 111–161. EBSCOhost,search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=139915141&site=ehost-live&scope=site.
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First Amendment – Freedom of Speech

The First Amendment allows citizens to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas even if the ideas are unpopular. Freedom of speech encompasses not only the spoken and written word, but also all kinds of expression (including non-verbal communications, such as sit-ins, art, photographs, films and advertisements).

1735 Truth Is A Defense Against Libel Charge

New York printer John Peter Zenger is tried on charges of seditious libel for publishing criticism of the royal governor. English law – asserting that the greater the truth, the greater the libel – prohibits any published criticism of the government that would incite public dissatisfaction with it. Zenger’s lawyer, Andrew Hamilton, convinces the jury that Zenger should be acquitted because the articles were, in fact, true, and that New York libel law should not be the same as English law. The Zenger case is a landmark in the development of protection of freedom of speech and the press.

1787 Federalist Papers’ Publication Starts

The first of 85 essays written under the pen name Publius by Alexander Hamilton, James Madison and John Jay begin to appear in the New York Independent Journal. The essays, called the Federalist Papers, support ratification of the Constitution approved by the Constitutional Convention on Sept. 17, 1787. In Federalist Paper No. 84, Hamilton discusses “liberty of the press.”

1791 First Amendment Is Ratified

The First Amendment is ratified when Virginia becomes the 11th state to approve the first 10 amendments to the Constitution, known as the Bill of Rights. The amendment, drafted primarily by James Madison, guarantees basic freedoms for citizens: freedom of speech, press, religion, assembly and petition.

1798 Alien And Sedition Acts Signed Into Law

While the nation’s leaders believe an outspoken press was justified during the war for independence, they take a different view when they are in power. The Federalist-controlled Congress passes the Alien and Sedition Acts. Aimed at quashing criticism of Federalists, the Sedition Act makes it illegal for anyone to express “any false, scandalous and malicious writing” against Congress or the president.

The United States is in an undeclared war with France, and Federalists say the law is necessary to protect the nation from attacks and to protect the government from false and malicious words. Republicans argue for a free flow of information and the right to publicly examine officials’ conduct.

1836 Efforts To Stifle Debate About Slavery Unsuccessful

As abolitionists develop the tactic of submitting many antislavery petitions to Congress, proslavery members of the U.S. House of Representatives adopt “gag” rules that bar such petitions from being introduced and debated. In 1844, former President John Quincy Adams, then a representative from Massachusetts, leads the effort to repeal these rules.

1859 ‘On Liberty’ Is Published

British philosopher John Stuart Mill publishes the essay On Liberty , arguing that only through the free exchange of ideas, even offensive ones or ones held by a minority of individuals, can society find “truth.”

1864 Lincoln Orders Two Newspapers Shut

President Abraham Lincoln orders Union Gen. John Dix to stop publication of the New York Journal of Commerce and the New York World after they publish a forged presidential proclamation calling for another military draft. The editors also are arrested. After the authors of the forgery are arrested, the newspapers are allowed to resume publication.

1873 Circulation Of Birth Control Information Outlawed

An “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” is passed by Congress. The act, more commonly known as the Comstock Act – after anti-obscenity activist Anthony Comstock – makes it a crime to publish, distribute or possess information about contraception or abortion, or to distribute or possess devices or medications used for those purposes.

Lawmakers were responding to increasing concern about abortion, the institution of marriage, and the changing role of women in society.

1917 Congress Passes Espionage Act Of 1917

With World War I being fought, President Woodrow Wilson proposes the Espionage Act of 1917 to protect the country from internal warfare propaganda. Congress passes the act, which makes it a crime to intentionally interfere with military forces, recruiting or enlistment or “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States.” Punishment is a maximum fine of $10,000, a maximum jail term of 20 years, or both. The act also bans any mailings urging treason.

1918 Sedition Act Of 1918 Punishes Critics Of WWI

An amendment to the Espionage Act of 1917, the Sedition Act is passed by Congress. It goes much further than its predecessor, imposing severe criminal penalties on all forms of expression that are critical of the government, its symbols, or its mobilization of resources for World War I. Ultimately, about 900 people will be convicted under the law. Hundreds of noncitizens will be deported without a trial; 249 of them, including anarchist Emma Goldman, will be sent to the Soviet Union.

1919 ‘Clear And Present Danger’ Exception Established

In Schenck v. United States , the U.S. Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upholds the conviction of Socialist Charles Schenck for conspiracy to violate the Espionage Act by attempting to distribute thousands of antiwar leaflets to U.S. servicemen. While acknowledging that the First Amendment under normal circumstances might protect Schenck’s activities, the Court holds that in special circumstances, such as wartime, speech that poses a “clear and present danger” can be restricted. The Court likens the ideas expressed in Schenck’s leaflets to “falsely shouting fire in a theatre and causing a panic.”

A few days later, in another opinion by Holmes, the Court will uphold Socialist Eugene V. Debs’ conviction, finding that his speech also poses a “clear and present danger” of undermining war recruitment and is not protected by the First Amendment.

1919 ‘Marketplace Of Ideas’ Concept Defined

In his dissent from the majority opinion in Abrams v. United States (upholding the Espionage Act convictions of a group of antiwar activists), U.S. Supreme Court Justice Oliver Wendell Holmes coins his famous “marketplace of ideas” phrase to explain the value of freedom of speech. He said that “the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Over the years, Holmes’ “marketplace” concept, and the idea that more is better when it comes to competing ideas, has been a consistent theme in First Amendment cases.

1925 Court: First Amendment Applies To States’ Laws

In Gitlow v. New York , the U.S. Supreme Court concludes that the free speech clause of the First Amendment applies not just to laws passed by Congress, but also to those passed by the states.

1926 Mencken Arrested For ‘Indecent Literature’

H.L. Mencken is arrested in Boston for distributing copies of his American Mercury magazine, which contains a story with a prostitute as a central character. Censorship groups in Boston say the magazine is obscene and order Mencken’s arrest for selling “indecent literature.”

1927 Criminal Syndicalism Law Constitutional

In Whitney v. California , the U.S. Supreme Court rules that California’s criminal syndicalism law is constitutional. A member of the state’s Communist Labor Party was prosecuted under the law, which barred advocating, teaching or aiding the commission of a crime, including “terrorism” as a way to achieve change in industrial ownership or political change. The Court says that freedom of speech is not an absolute right.

1931 Court: Symbolic Expression Of Ideas Also Protected

In Stromberg v. California , the U.S. Supreme Court invalidates the state court conviction of a 19-year-old member of the Young Communist League for displaying a red flag as “an emblem of opposition to the United States government.” The Court rules that the woman’s nonverbal, symbolic expression of her antigovernment opinions is protected just as are any words that she might write or speak to express those opinions.

1931 Prior Restraint Ruled Unconstitutional

Near v. Minnesota is the first U.S. Supreme Court decision to invoke the First Amendment’s press clause. A Minnesota law prohibited the publication of “malicious, scandalous, and defamatory” newspapers. It was aimed at the Saturday Press, which had run a series of articles about corrupt practices by local politicians and business leaders. The justices rule that prior restraints against publication violate the First Amendment, meaning that once the press possesses information that it deems newsworthy, the government can seldom prevent its publication. The Court also says the protection is not absolute, suggesting that information during wartime or obscenity or incitement to acts of violence may be restricted.

1937 Court: First Amendment Protects ‘Peaceable Assembly’

In De Jonge v. Oregon , the U.S. Supreme Court overturns the conviction of Dirk De Jonge for participating in a Communist Party political meeting, holding that “peaceable assembly for lawful discussion cannot be made a crime.” That right, the Court finds, is not dependent upon whether one agrees with the ideas being discussed by the people assembled.

1940 Ban On Religious Solicitation Struck Down

In Cantwell v. Connecticut , the U.S. Supreme Court holds that two Jehovah Witnesses’ rights of free speech and free exercise of religion were violated when they were arrested for proselytizing in a Catholic neighborhood. The Court says the solicitation law, which allows a state official to refuse a permit based on religious grounds, is unconstitutional. The Court also overturns a breach of peace conviction, saying the pair’s message was protected religious speech. The case is the first to extend the free exercise of religion clause to the states and to establish the ‘time, manner and place’ rule, which says the state can regulate the free exercise right to ensure it is practiced in a reasonable time, manner and place.

1940 Flag Salute Requirement Is Upheld

In Minersville School District v. Gobitis , the U.S. Supreme Court upholds a Pennsylvania flag-salute law after a challenge by a Jehovah’s Witness family whose two children were expelled for refusing to salute the flag. They believe the salute is forbidden by biblical commands. The Court says the flag is a symbol of national unity, which is the “basis of national security.”

1942 ‘Fighting Words’ Exception Established

In Chaplinsky v. New Hampshire , the U.S. Supreme Court upholds the conviction of a Jehovah’s Witness who had called a police officer a “damned fascist.” The Court rules that there are certain words that “by their very utterance inflict injury” and are of “such slight social value” that they are not welcome in the marketplace of ideas. This category of speech, named “fighting words” by the Court, is not protected by the First Amendment. Consequently, the speaker may be prosecuted.

1943 Court: Required Flag Salute Violates First Amendment

In West Virginia State Board of Education v. Barnette , the U.S. Supreme Court overrules its decision in Minersville School District v. Gobitis and decides that a West Virginia law requiring students to salute the American flag violates the free speech clause of the First Amendment. “Compulsory unification of opinion,” the Court says, is “antithetical to First Amendment values.”

1947 Hatch Act Upheld; Dissent Says It Violates 17th Amendment

In United Public Workers v. Mitchell , the U.S. Supreme Court finds that the Hatch Act, a federal law that prohibits federal employees from participating in many electoral activities does not violate the First Amendment. In a strong dissent, Justice Hugo Black argues that the law muzzles several million citizens and threatens popular government, because it deprives citizens of the right to participate in the political process.

Such limitations, he argues, would be inconsistent with the First Amendment’s guarantee of freedom of speech, press, assembly and petition. Moreover, Black finds that the Hatch Act would violate, or come dangerously close to violating, Article I and the 17th Amendment, which protect the right of the people to vote for their representatives in the House and Senate and to have their votes counted.

1949 Scope Of ‘Fighting Words’ Doctrine Limited

In Terminiello v. Chicago , the U.S. Supreme Court overturns the conviction of Father Arthur Terminiello for disturbing the peace. He was convicted after giving a controversial speech that criticized various racial and political groups. Several disturbances by protesters occurred after the speech. The Court says “fighting words” can be restricted only when they are “likely to produce a clear and present danger.” Justice William O. Douglas writes that free speech may “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

1952 Justices Uphold Group Libel Law

In Beauharnais v. Illinois , the U.S. Supreme Court upholds the conviction of a white supremacist for passing out leaflets that characterized African Americans as dangerous criminals. The “group libel” law under which Joseph Beauharnais was prosecuted makes it a crime to make false statements about people of a particular “race, color, creed or religion” for no other reason than to harm that group. The Court rules that libel against groups, like libel against individuals, has no place in the marketplace of ideas.

1957 Obscenity Exception To First Amendment Established

In Roth v. United States , the U.S. Supreme Court decides that it is not a violation of the First Amendment for the government to regulate, or even criminalize, speech that is “obscene,” because, just like libel and “fighting words,” obscene speech is “utterly without redeeming social importance.” The Court says that in defining obscenity, the government must consider “contemporary community standards.” What was “obscene” 50 years ago may not be in today’s society.

1958 Court Protects ‘Free Association’ In NAACP Case

In NAACP v. Alabama , the U.S. Supreme Court holds that when Alabama state officials demanded that the NAACP hand over its membership list, the members’ right of “free association” was violated. Although no such right is specifically included in the First Amendment, the Court says it is a necessary extension of the rights to free speech and free assembly: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the due process clause of the 14th Amendment, which embraces freedom of speech.”

1959 No Protection From Congressional Inquiry

The U.S. Supreme Court finds professor Lloyd Barenblatt’s First Amendment rights were not violated when he was convicted of contempt of Congress for refusing to answer questions about his religious and political beliefs before the House Un-American Activities Committee. In Barenblatt v. United States , the Court says that such questions are legitimate when the investigation’s goal is to “aid the legislative process” and to protect important government interests.

1961 Symbolic Speech Of Civil Rights Protesters Protected

In Garner v. Louisiana , the U.S. Supreme Court overturns the convictions of 16 African American demonstrators for disturbing the peace in three lunch counter sit-ins at all-white restaurants in Baton Rouge, La., to protest segregation. The cases were consolidated under Garner v. Louisiana. Referring to earlier court opinions protecting symbolic speech, Justice John Harlan explains that a sit-in demonstration “is as much a part of the free trade of ideas as is verbal expression.”

1964 Court Establishes ‘Actual Malice’ Standard

In New York Times Co. v. Sullivan , the U.S. Supreme Court establishes the “actual malice” standard when it reverses a civil libel judgment against the New York Times. The newspaper was sued for libel by Montgomery, Ala.’s police commissioner after it published a full-page ad that criticized anti-civil rights activities in Montgomery. The court rules that debate about public issues and officials is central to the First Amendment. Consequently, public officials cannot sue for libel unless they prove that a statement was made with “actual malice,” meaning it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

1966 Loyalty Oath Is Struck Down

In Elfbrandt v. Russell , the U.S. Supreme Court invalidates an Arizona law requiring state employees to take a loyalty oath. Anyone who took the oath and then became a member of the Communist Party or any other group that advocated the violent overthrow of the government could be prosecuted for perjury and fired. The Court says the law violates the due process clause by infringing on the right of free association. The Court holds that the law is too broad by punishing a person who joins a group that has both legal and illegal purposes but does not subscribe to the illegal purpose.

1966 Smith Act Is Found Constitutional

In Dennis v. United States , the U.S. Supreme Court upholds the convictions of 12 Communist Party leaders who were convicted under the Smith Act of 1940, formally known as the Alien Registration Act. The law makes it illegal to teach or advocate the overthrow or destruction of the U.S. government, or publish any materials or organize a group that endorses such action. The majority writes that the “existence of the conspiracy” creates “a clear and present danger.”

1968 Limits Placed On Symbolic Speech Right

In United States v. O’Brien , the U.S. Supreme Court lets stand the conviction of an activist who burned his draft card to protest the Vietnam War. Although the Court admits that the law against destroying a draft card does limit speech, it rules that the limit is acceptable because it serves an important government interest (i.e., the smooth operation of the draft during wartime) and is “content-neutral,” meaning that it is not meant to punish any particular point of view or opinion.

1968 Teacher’s Free Speech Right Upheld

The U.S. Supreme Court decides that a public school teacher’s free speech right was violated when he was fired for writing a letter to the newspaper criticizing how money was divided between athletics and academics. The justices say in Pickering v. Board of Education that public school teachers are entitled to some First Amendment protection and that the teacher was speaking out more as a citizen than as a public employee when he wrote the letter.

1969 Students’ Right To Symbolic Speech Upheld

In Tinker v. Des Moines Independent Community School District , the U.S. Supreme Court rules that the school board was wrong to suspend three students who wore black armbands to school to protest the Vietnam War. The Court finds that the students’ passive protest posed no risk of disrupting school activities. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court’s opinion says.

1969 Private Ownership Of Obscene Material Protected

In Stanley v. Georgia , the U.S. Supreme Court finds unconstitutional a Georgia obscenity law that prohibits the possession of such material. The Court rules that the Constitution “protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one’s privacy and control of one’s thoughts.”

1969 Advocacy Of Violence Is Protected Speech Except In Rare Circumstances

In Brandenburg v. Ohio , the U.S. Supreme Court reverses the conviction of a Ku Klux Klan leader under an Ohio law prohibiting speech that calls for crime or violence as a way of winning political change. The Court holds that unless the speaker incites his listeners to “imminent lawless action,” the speech is protected by the First Amendment.

1971 Antiwar Expression Is Ruled Protected Speech

In Cohen v. California , the U.S. Supreme Court overturns the conviction of a man convicted of disturbing the peace for wearing a jacket bearing a vulgarism about the draft. The Court concludes that the expression, however crude, did not pose enough of a risk of inciting disobedience to override his First Amendment right to express his opposition to the Vietnam War.

1971 Newspapers Win Pentagon Papers Case

The New York Times and the Washington Post obtain secret Defense Department documents that detail U.S. involvement in Vietnam in the years leading up to the Vietnam War. Citing national security, the U.S. government gets temporary restraining orders to halt publication of the documents, known as the Pentagon Papers. But, acting with unusual haste, the U.S. Supreme Court finds in New York Times v. United States that prior restraint on the documents’ publication violates the First Amendment. National security concerns are too speculative to overcome the “heavy presumption” in favor of the First Amendment’s guarantee of freedom of the press, the Court says.

1972 Court: No Reporter’s Privilege Before Grand Juries

Branzburg v. Hayes is a landmark decision in which the U.S. Supreme Court rejects First Amendment protection for reporters called before a grand jury to reveal confidential information or sources. Reporters argued that if they were forced to identify their sources, their informants would be reluctant to provide information in the future. The Court decides reporters are obliged to cooperate with grand juries just as average citizens are. The justices do allow a small exception for grand jury investigations that are not conducted or initiated in good faith.

1973 Court: States Can Regulate Obscene Exhibits

In Paris Adult Theatre I v. Slaton , the U.S. Supreme Court upholds a Georgia injunction against the showing of allegedly obscene films at an adult movie theater that allowed only patrons at least 21 years old. The Court finds that “legitimate state interests,” such as preserving quality of life and public safety, are at stake in regulating commercialized obscenity even if the exhibits are limited to consenting adults.

1973 Definition Of Obscenity Is Clarified

In Miller v. California , the U.S. Supreme Court establishes a new definition of obscenity, setting out a three-part test for judging whether material is obscene: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

1976 Money Spent In Political Campaigns Considered Speech

When Congress tries to limit expenditures in political campaigns, the U.S. Supreme Court, in Buckley v. Valeo , invalidates provisions that restrict candidates’ ability to spend their own money on a campaign, limit campaign expenditures by an outside group, and limit total campaign spending. The Court compares spending restrictions with restrictions on “political speech.” The majority reasons that discussion of public issues and political candidates are integral to the U.S. political system under the Constitution. The Court says government-imposed limits on the amount of money a person or group can spend on political communication reduces “the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”

1976 Justices Protect Commercial Speech

In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , the U.S. Supreme Court strikes down a state law that forbids pharmacists from including the prices of prescription drugs in their ads because it is unprofessional conduct. Although such information does not convey an idea other than proposing that a purchase be made, the Court finds that commercial speech enjoys the same First Amendment protection as noncommercial speech.

1977 Court Allows Publication Of Juvenile’s Identity

In Oklahoma Publishing Company v. District Court , the U.S. Supreme Court finds that when a newspaper obtains the name and photograph of a juvenile involved in a juvenile court proceeding, it is unconstitutional to prevent publication of the information, even though the juvenile has a right to confidentiality in such proceedings. A similar ruling will be made by the court two years later, in Smith v. Daily Mail Publishing Company , when the Court finds that a newspaper’s First Amendment right takes precedence over a juvenile’s right to anonymity.

1978 Nazis Permitted To March In Skokie, Ill.

The 7th U.S. Circuit Court of Appeals invalidates a city law passed in Skokie, Ill., home to 5,000 Holocaust survivors, to prevent a neo-Nazi group from holding a march there. The Court rules in Collin v. Smith that the group should be permitted to march in their uniforms, distribute anti-Semitic leaflets and display swastikas. The court does not deny the group’s symbols are offensive to many observers, but concludes that “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The U.S. Supreme Court will refuse to review the case.

1978 FCC Can Regulate Indecent Speech

The U.S. Supreme Court, in FCC v. Pacifica Foundation , allows the Federal Communications Commission to regulate indecent speech broadcast over the air. The Court says the FCC can channel broadcasts that contain indecent language to late-night hours, when children are less likely to be listening.

1980 Court Establishes Commercial Speech Test

In Central Hudson Gas & Electric Corp. v. Public Service Commission , the U.S. Supreme Court decides that a state ban on promotional advertising by the electric utility is unconstitutional. The ruling sets up a four-part test to decide when commercial speech can or cannot be regulated: (1) It must not be misleading or involve illegal activity (2) The government interest advanced by the regulation must be significant (3) The regulation must directly advance the government interest (4) The regulation must be limited to serving the asserted government interest.

1982 School Board Cannot Ban Library Books

In Board of Education v. Pico , the U.S. Supreme Court rules that a school board’s decision to remove books from the school library based simply on their content violates the First Amendment’s free speech right. The Court says the First Amendment protects the right to receive information and ideas. The justices allow that books that are “pervasively vulgar” or educationally unsuitable can be removed.

1982 Justices Rule Child Porn Not Protected

In New York v. Ferber , the U.S. Supreme Court holds that the First Amendment does not protect child pornography. Child pornography joins certain categories of speech – libel, “fighting words,” words that present a “clear and present danger” of violence, and obscene material – that are considered to have such negative consequences that it is acceptable for the government to restrict them.

1983 Public Employees’ Free Speech Right Defined

In Connick v. Myers , a landmark free-speech ruling for public employees, the U.S. Supreme Court says that an assistant district attorney’s free speech right was not violated when she was fired for distributing a questionnaire about internal office practices to fellow prosecutors. At least one of Myers’ questions related to a matter of public concern: whether assistant prosecutors felt pressured to work in political campaigns. But, relying on its 1968 Pickering ruling, the Court decides that the employer’s interest in a disruption-free workplace outweighs the employee’s right to comment on an issue of public concern.

1985 Anti-Pornography Law Is Struck Down

In American Booksellers Association v. Hudnut , the 7th U.S. Circuit Court of Appeals strikes down an Indianapolis anti-pornography law. The law had not used the court’s guidelines for deciding what is “obscene” material. The court finds that the law unconstitutionally targeted a certain viewpoint and allowed the government to decide which ideas are good or bad.

1986 Court: Student’s Lewd Speech Not Protected

In Bethel School District v. Fraser , the U.S. Supreme Court decides that a high school senior’s free speech right was not violated when he was disciplined for making a lewd speech at an assembly. Previously, in Tinker v. Des Moines Independent Community School District , the justices had said students do not “shed their constitutional rights” at the schoolhouse door. Chief Justice Warren E. Burger writes that schools can prohibit lewd speech because it is inconsistent with the “fundamental values of public school education.”

1988 Court Allows Censorship Of School Publications

In Hazelwood School District v. Kuhlmeier , the U.S. Supreme Court rules that public school administrators can censor speech by students in publications (or activities) that are funded by the school – such as a yearbook, newspaper, play, or art exhibit – if they have a valid educational reason for doing so.

1989 Court: Flag Burning Is Protected Symbolic Speech

In Texas v. Johnson , the U.S. Supreme Court rules that burning an American flag is protected symbolic speech. Gregory Lee Johnson burned the flag outside Dallas City Hall to protest Reagan administration policies. The justices find that his actions fall into the category of expressive conduct and have a political nature. Speech cannot be prohibited simply because an audience takes offense to certain ideas, the Court says.

1990 Flag Protection Act Ruled Unconstitutional

In U.S. v. Eichman , the U.S. Supreme Court decides that the 1989 Flag Protection Act is unconstitutional. The law provided penalties of up to one year in jail and a $1,000 fine for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or ground, or tramples upon” any U.S. flag. The justices rule that the right to free expression supersedes protection of the flag as a national symbol. Justice William J. Brennan writes: “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”

1991 Media Coverage Limited In Gulf War

The Pentagon imposes rules for media coverage of the war in the Persian Gulf, citing the possibility that some news – including information on downed aircrafts, specific troop numbers, and names of operations – may endanger lives or jeopardize U.S. military strategy. Nine news organizations file a lawsuit questioning the constitutionality of limiting media access to the battleground. But a court rules the question moot when the war ends before the case is decided.

1991 Son Of Sam Law Is Struck Down

The U.S. Supreme Court strikes down New York’s Son of Sam law aimed at preventing convicted criminals or those accused of crimes from profiting from the sale of any work discussing their crimes. In Simon & Schuster Inc. v. New York State Crime Victims Board , the Court says the law violates the First Amendment because it singles out earnings from speech or writing.

1992 Court Strikes Down Hate Crime Law

In R.A.V. v. The City of St. Paul , the U.S. Supreme Court reverses the juvenile conviction of a 14-year-old white boy who burned a cross on the lawn of an African American family. The boy was prosecuted under a law prohibiting the placement of certain symbols that were “likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender.” The Court finds that because the law punishes certain conduct only because of the ideas behind it – however offensive those ideas may be – it violates the First Amendment’s free speech clause.

1993 Justices Allow Tougher Hate Crime Penalties

In Wisconsin v. Mitchell , the U.S. Supreme Court upholds a Wisconsin law that increases the penalty for assault if the offender purposely picks his victim “because of the race, religion, color, disability, sexual orientation or national origin or ancestry of that person.” The Court rules that the increased penalty does not violate the offender’s free speech rights because the Wisconsin law is aimed at the offender’s actions.

1994 Justices Uphold Buffer Zones At Abortion Clinics

In Madsen v. Women’s Health Center , the U.S. Supreme Court affirms a Florida court’s ruling that abortion protesters could not demonstrate within 36 feet of an abortion clinic, make loud noises within earshot of the clinic, or make loud noises within 300 feet of a clinic employee’s home. (These distance requirements are known as buffer zones.) Although the Court acknowledges that the ruling restricts the protesters’ speech, it finds the restrictions “necessary to serve a significant government interest” of providing needed health care.

1995 Communications Decency Act Passed

As part of the Telecommunications Act of 1996, Congress enacts the Communications Decency Act. The law is intended primarily to protect minors using the internet by criminalizing the placement of “obscene” and “patently offensive” material on the Web. The Communications Decency Act is almost immediately challenged by a diverse coalition of health-care providers, sex educators and pornographers on the grounds that the law violates the right to free speech.

1996 Child Pornography Prevention Act Passed

The Child Pornography Prevention Act expands the definition of child pornography – which, unlike most pornography involving adult subjects, does not enjoy First Amendment protection and can be criminalized – to include computer-generated depictions of children engaging in sexual activity. The act is challenged on First Amendment grounds by a variety of civil liberties and artistic groups.

1997 ‘Floating’ Buffer Zones At Clinics Struck Down

In Schenck v. Pro-Choice Network of Western New York , the U.S. Supreme Court upholds a 15-foot buffer zone around an abortion clinic’s entrances and driveways, but strikes down a “floating” buffer zone that requires protesters to stay 15 feet away from all cars and patients as they enter and exit the clinic. The Court finds that, in contrast to the “fixed” buffer zone around the clinic, the “floating” zone risks silencing protesters: “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.”

1997 Equal Access For Military Recruiters Is Upheld

The Solomon Amendment requires institutions of higher education to provide military recruiters with the same access to students as other potential employers. If the school does not, it loses certain federal funds. Members of an association of law schools and law faculties wanted to restrict military recruiting because they objected to the military’s policy on LGBT+ recruits. The U.S. Supreme Court unanimously says that the Solomon Amendment does not place an unconstitutional condition on the receipt of federal funds. The Court says the First Amendment does not prevent Congress from directly imposing the equal access requirement because the Solomon Amendment limits conduct, not speech.

1997 Court Ruling Backs Free Speech On Internet

In Reno v. American Civil Liberties Union , the U.S. Supreme Court gives broad support to free speech on the Internet. The justices rule that the Communications Decency Act violates the First Amendment by criminalizing many kinds of material on the internet that are not obscene or offensive, such as medical information or artistic depictions of the human body.

1998 Court: Public TV Can Exclude Candidates

The U.S. Supreme Court decides that public television stations can exclude minor-party candidates from their debates as long as the decision is not based on the candidates’ views and the debates are not designed as public forums. The decision, in Arkansas Educational Television Commission v. Forbes , strikes down an appeals court ruling that a state-owned TV network is obliged under the First Amendment to allow any candidate who has qualified for the ballot access to a debate.

1998 Decency Test On Arts Grants Is Upheld

In National Endowment for the Arts v. Finley , the U.S. Supreme Court rules that the NEA, the government’s art-funding agency, can include “decency” standards among its criteria for awarding government grants for artists’ work without violating the First Amendment.

1999 Giuliani Targets Publicly Funded Art

Infuriated by a planned exhibit at the Brooklyn Museum of Art that features an image of the Virgin Mary decorated with elephant dung, New York City Mayor Rudy Giuliani threatens to cut all city funding to the museum, evict the museum from its building, and remove the Board of Directors. A subsequent First Amendment lawsuit between the museum and the city will be settled the following year, with the city agreeing to pay an additional $5.8 million in repairs to the museum over the next two years.

2000 Boy Scouts Can Bar LGBT+ Leaders

In Boy Scouts of America v. Dale , the U.S. Supreme Court says the Boy Scouts organization has the right to bar gay people from serving as troop leaders. Assistant scoutmaster James Dale contended that the Boy Scouts had violated a New Jersey statute banning discrimination on the basis of sexual orientation in places of public accommodation. The justices said the law violated the Boy Scouts’ First Amendment right to expressive association.

2000 Court Revisits ‘Floating’ Buffer Zones At Clinics

In Hill v. Colorado , the U.S. Supreme Court upholds a Colorado law that prohibits abortion protesters from “knowingly approaching” within eight feet of a person entering or exiting an abortion clinic. The Court says that, unlike the “floating” 15-foot buffer zone that it struck down in Schenck , the buffer zone in the Colorado law is small, so protesters are still able to exercise their free speech right.

2000 Children’s Internet Protection Act Passed

Congress passes the Children’s Internet Protection Act. The law requires public libraries that receive certain federal funds to use a portion of those funds to buy internet programs for their computer terminals to filter out material that is “harmful to minors.” The American Library Association and the ACLU both bring lawsuits challenging the law on First Amendment grounds.

2002 Ban On ‘Virtual’ Child Porn Struck Down

In Ashcroft v. Free Speech Coalition , the U.S. Supreme Court rules that the Child Pornography Prevention Act’s criminalization of computer-generated depictions of children engaging in sexual activity violates the First Amendment. The Court finds that the law goes further than existing child pornography laws (which ban material involving actual children) to potentially cover many kinds of images that are not pornographic.

2003 Law To Protect Children Passed

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act, or the PROTECT Act, includes numerous provisions intended to protect children from exploitation, kidnapping, and other crimes. It increases penalties for creating child pornography and strengthens penalties for “virtual” child pornography. Modern technology makes it easier for individuals to produce child pornography without involving “real” children. This law takes steps to prevent that practice. The law also encourages increased cooperation of internet service providers to report suspected child pornography.

2003 Court Rules On Cross-Burning Law

In Virginia v. Black , the U.S. Supreme Court rules that a law prohibiting cross burning could, in theory, be allowed under the First Amendment if it targets only cross burnings that are specifically “intended to intimidate.” Nevertheless, the Court strikes down the Virginia law because it outlaws all cross burnings, including those intended to express a political view.

2003 Law On Library Internet Filters Upheld

In United States v. American Library Association , the U.S. Supreme Court rules that the Children’s Internet Protection Act (CIPA) of 2000, requiring public libraries that receive certain federal funds to buy internet filters for their computers to weed out material that is “harmful to minors,” does not violate the First Amendment. The Court says that Congress has broad authority to attach restrictions to its funding, and that the CIPA restrictions are consistent with library rules that limit children’s access to only age-appropriate materials. The Court says that libraries are allowed to disable the “blocking” software for adults.

2003 Justices Uphold Campaign Finance Law

The Bipartisan Campaign Finance Reform Act of 2002, known as the McCain-Feingold Bill, is an effort to change the way money is raised and spent by political campaigns. Key parts are a ban on unrestricted (“soft money”) donations to political parties (often by corporations and unions) and restrictions on TV ads sponsored by unions, corporations and nonprofit groups up to 60 days before elections. The plaintiffs, including unlikely allies such as the National Rifle Association and the ACLU, say these provisions violate their rights to free speech and association. The U.S. Supreme Court upholds the provisions, finding that they are justified by the government’s interest in preventing corruption or the appearance of corruption that might result.

2004 Child Online Protection Act Struck Down

After the Child Online Protection Act became law, the ACLU sued to stop its enforcement, saying the law violated the right to free speech. The U.S. District Court and the Third U.S. Circuit Court of Appeals both agree with the ACLU. In 2002, however, the U.S. Supreme Court orders the Third Circuit to reevaluate the case, saying the decision was based on insufficient reasoning.

In 2003, the appeals court again finds the law unconstitutional, based on different grounds from the first ruling. The justices agree to rehear the case and, in Ashcroft v. American Civil Liberties Union , strike down the law. Justice Anthony Kennedy writes that children can be protected from inappropriate material by other, less restrictive ways and that the law could prevent adults from accessing information they have a right to view.

2004 Patriot Act Provision Ruled Unconstitutional

A federal judge for the Southern District of New York rules unconstitutional a Patriot Act provision that allows the FBI to demand information about internet users but does not hold the FBI subject to public review or judicial oversight for its actions. The provision also forbids internet service providers from revealing that such information has been requested. Judge Victor Marrero rules that this provision violates the free speech right by prohibiting internet service providers from ever speaking about such FBI requests.

2006 Court Rejects Vermont Campaign Finance Law

Vermont’s Act 64 stringently limits the amounts that candidates for state office may spend on their campaigns and the amounts that individuals, organizations, and political parties may contribute. In Randall v. Sorrell , the U.S. Supreme Court reaffirms its 1976 ruling in Buckley v. Valeo that rejected limits on how much candidates could spend on their own campaigns. Regarding Vermont’s contribution limits, the Court says they are so low that they pose a constitutional risk to the electoral process. Challengers may be unable to mount an effective challenge to better-financed incumbents.

2007 Court Strikes Down Ad Limits In Campaign Law

The U.S. Supreme Court creates an exemption to advertisement restrictions set out in the 2002 McCain-Feingold campaign finance law. In Federal Election Commission v. Wisconsin Right to Life , Chief Justice John G. Roberts Jr. writes that only ads that make specific appeals to vote for or against a candidate can be prohibited in the period covered by the law – 30 days before a primary election and 60 days before a general election. The Court says limits on TV ads sponsored by corporations or unions in that period amount to censorship of political speech, which is protected under the First Amendment.

2007 Justices Restrict Students’ Free Speech Right

In Morse v. Frederick , the U.S. Supreme Court affirms that free speech rights for public school students are not as extensive as those for adults. In this case, a student held up a banner with the message “Bong Hits 4 Jesus,” a slang reference to marijuana use, at a school-supervised event across from the campus. The principal removed the banner and suspended the student for 10 days. The majority opinion says that although students have some right to political speech, it does not include pro-drug messages that may undermine the school’s mission to educate against illegal drug use.

2009 City’s Refusal Of Religious Monument Upheld

The U.S. Supreme Court decides unanimously in Pleasant Grove City v. Summum that a Utah city did not violate the Summum church’s free speech right by refusing a donation of a monument reflecting its beliefs. The church argued that the park, which had a Ten Commandments monument, was a public forum and that the city could not discriminate among speakers. The Court said permanent monuments were government speech and did not have the same free speech protection as speakers or leaflets in a public forum.

2010 Court Lifts Limits On Corporate Election Spending

In Citizens United v. FEC , the U.S. Supreme Court rules, 5-4, to remove limits on corporate spending on elections. Corporations and unions still cannot directly give money to federal candidates or national party committees. The majority opinion says the First Amendment right of free speech extended to corporations. The landmark decision overturns decades of rules that governed the campaign finance and sparked fears that a flood of money into politics would dramatically alter campaigns.

2010 Corporate Spending Limit Rejected

The U.S. Supreme Court decides, 5-4, in Citizens United v. Federal Election Commission , that the government cannot regulate political speech — political spending — by corporations in elections. “If the First Amendment has any force,” Justice Anthony M. Kennedy writes for the majority, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The dissenters warn of the consequences if a flood of corporate money is unleashed in elections. Justice John Paul Stevens says corporate speech should not be treated the same as that of people. The ruling overturns two precedents about the free speech rights of corporations: Austin v. Michigan Chamber of Commerce , a 1990 ruling that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission , a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

2011 First Amendment Protects Funeral Protests

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.” Those are Chief Justice John G. Roberts Jr.’s words when the Supreme Court rules in Snyder v. Phelps that the First Amendment’s right to free speech protects hateful protests at military funerals. Members of the Westboro Baptist Church — which believes God is punishing the U.S. for its tolerance of homosexuality — had appeared at the funeral of a Marine who died in Iraq. Albert Snyder, the Marine’s father, sued the protesters for, among other things, intentional infliction of emotional distress. Roberts suggests that laws creating buffer zones around funerals would be a better response than punishing unpopular speech. He says that the nation’s commitment to free speech demands protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

2012 Person’s Right To Lie Is Protected

The U.S. Supreme Court strikes down the Stolen Valor Act, a federal law that made it illegal for individuals to claim to have won or to wear military medals or ribbons that they didn’t earn. The Court, in a 6-3 ruling, says that the First Amendment protects the right to lie about medals and military service. Justice Anthony M. Kennedy says freedom of speech “protects the speech we detest as well as the speech we embrace.” The government had argued that such lies “inhibit the government’s efforts to ensure that the armed services and the public perceive awards as going only to the most deserving few.”

2012 U.S. Can’t Require Graphic Warnings On Cigarette Packs

The U.S. Court of Appeals for the District of Columbia Circuit rules that the federal Food and Drug Administration cannot require tobacco companies to place large graphic health warnings on cigarette packages to show the effects of smoking. The appeals court upholds a lower court’s decision that the requirement violates the First Amendment’s free speech right. Some of the largest tobacco companies sued the government, arguing that the warnings were not just factual information but advocated against smoking.

2015 States May Limit Judicial Candidates’ Fund-Raising Requests

The U.S. Supreme Court rules, 5-4, in Williams-Yulee v. Florida Bar , No. 13-1499 that states may ban judicial candidates from personally asking their supporters for money. Twenty-nine other states also prohibit personal solicitations, which they say threaten the integrity of the judicial branch and public confidence in the system.

2015 Intent Cited in Online Threats Case

In a social media case, Elonis v. United States , the U.S. Supreme Court reverses the conviction of a Pennsylvania man who had used violent language against his wife on Facebook. The majority opinion says prosecutors failed to prove the defendant’s intent when he published threatening lyrics about his wife on Facebook. The decision makes it harder to prosecute people for threats made on social media.

2015 Court Says Texas May Reject License Plate Design

The U.S. Supreme Court decides in Walker v. Texas Division, Sons of Confederate Veterans, Inc. , 5-4, that Texas may refuse to make a specialty license plate with the Confederate flag. The Sons of Confederate Veterans sued the state when it refused to make such a plate. The group said its First Amendment right to free speech had been violated. The majority opinion says that because license plates “constitute government speech,” Texas could choose which designs to produce.

2015 Town Ordinance On Signs Struck Down

In Reed v. Town of Gilbert, Ariz., the U.S. Supreme Court unanimously strikes down a town law that treated a church’s signs differently from other signs, such as political ads. Unlike other signs, the church signs were limited in size and allowed to be in place for only a certain number of house. The majority opinion says that the town ordinance was based on the content of the sign’s message, which violates the First Amendment’s free speech right.

2019 Federal Ban on ‘Immoral,’ ‘Scandalous’ Trademarks Struck Down

The U.S. Supreme Court rules, 6-3, that the federal government’s ban on registering “immoral” and “scandalous” trademarks violates the First Amendment of the Constitution. The dissenters express concern that the majority opinion goes too far and that the trademark office would be forced to register trademarks containing “the most vulgar, profane, or obscene words and images imaginable.” In the case, Iancu v. Brunetti, a Los Angeles artist, Erik Brunetti, sued the government for refusing to register the trademark for his “subversive” clothing line.

2021 Court Backs Catholic Agency Over Refusal To Work With Same-Sex Couples

The U.S. Supreme Court sides with a Catholic foster care agency that was cut off by the City of Philadelphia from receiving foster care referrals because it refused to work with same-sex couples. The agency believes marriage is between a man and a woman. The Court unanimously rules in Fulton v. City of Philadelphia that the city was wrong to end its foster care contract with Catholic Social Services. Chief Justice John G. Roberts Jr., writing for six of the justices, said the city’s refusal to contract with the foster care agency unless it agreed to certify same-sex couples as foster parents violated the First Amendment.

2021 Court Sides With Cheerleader In Off-Campus Speech

The U.S. Supreme Court rules 8-1 in Mahony Area School District v. B.L. in favor of a Pennsylvania cheerleader who lost her place on the squad because of a profane off-campus rant posted on social media. Although the Court said the punishment violated her First Amendment right of free speech, it declined to say schools never have a role in disciplining students for off-campus speech.

2022 Censure of Politician Is Constitutional, High Court Says

The U.S. Supreme Court unanimously decides in House Community College System v. Wilson that elected bodies do not violate the First Amendment’s free speech clause when they censure a member. Justice Neil M. Gorsuch wrote: “In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers — and to continue exercising their free speech rights when the criticism comes.”

2022 High Court Rules Against Boston On Christian Flag

The U.S. Supreme Court unanimously rules in Shurtleff v. City of Boston that the City of Boston violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall. One of three flagpoles is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride. In a 12-year period, the city approved 284 requests to raise flags and rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our Judeo-Christian moral heritage.” The city’s refusal to let the group fly its flag based on its religious viewpoint violated the free speech clause of the First Amendment, the majority opinion said.

Related Resources

Book: First Amendment (1791)
Handout: Freedom of Speech: Finding the Limits
Book: Chapter 6: The Right to Freedom of Speech
Video: A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O'Connor: Freedom of Speech
Book: Chapter 8: The Latitude and Limits of Free Speech
Book: Chapter 10: The Flag-Salute Cases
Book: Chapter 18: Freedom of Speech in Public Schools

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As a legal matter, it can be extremely difficult to determine where faculty members’ rights under academic freedom and the First Amendment begin and end. It can also be difficult to explain the distinction between “academic freedom” and “free speech rights under the First Amendment”—two related but analytically distinct legal concepts. Academic freedom rights are not coextensive with First Amendment rights, although courts have recognized a relationship between the two.

The First Amendment generally restricts the right of a public institution—including a public college or university—to regulate expression on all sorts of topics and in all sorts of settings. Academic freedom, on the other hand, addresses rights within the educational contexts of teaching, learning, and research both in and outside the classroom—for individuals at private as well as at public institutions. This outline aims to give an overview of the protections afforded by academic freedom and the First Amendment, as well as some guidance on the areas in which they do not overlap or where courts have been equivocal or undecided on how far their protections extend. 2 Because the First Amendment applies only to governmental actors, this outline focuses primarily on public institutions.

Sources of Academic Freedom Rights

Academic freedom has a number of sources; the protection it affords in a given circumstance can depend on a variety of factors, including state law, institutional custom and policy, and whether the institution is public or private. The notion of academic freedom was originally given legal recognition and force in a series of post-McCarthy-era Supreme Court opinions that invoked the First Amendment to the U.S. Constitution.

A. First Amendment – Text and Interpretations

1. Text : The text of the First Amendment to the U.S. Constitution, “Congress shall make no law . . . abridging the freedom of speech,” makes no explicit mention of academic freedom. However, many courts that have considered claims of academic freedom – including the U.S. Supreme Court – have concluded that there is a “constitutional right” to academic freedom in at least some instances, arising from their interpretation of the First Amendment. 2. Judicial Origins : During the McCarthy era, a number of employers began to require teachers (and other public employees) to sign statements assert that they were not involved in any subversive groups. In response to these cases, the U.S. Supreme Court began to codify the notion of constitutional academic freedom. a. Adler v. Board of Education , 342 U.S. 485 (1952) (Douglas, J., dissenting). This case involved a New York state statute that essentially banned state employees from belonging to “subversive groups” – groups that advocated the use of violence in order to change the government. Under the statute, public employees were forced to take loyalty oaths stating that they did not belong to subversive groups in order to maintain their employment. While the Supreme Court’s decision upheld the state statute, Justice Douglas’ dissent contains the first mention of academic freedom in a Supreme Court case. Referring to the process by which organizations were found “subversive,” Justice Douglas asserted that “[t]he very threat of such a procedure is certain to raise havoc with academic freedom. . . . A teacher caught in that mesh is almost certain to stand condemned. Fearing condemnation, she will tend to shrink from any association that stirs controversy. In that manner freedom of expression will be stifled.” Douglas said that because the law excluded an entire viewpoint without a showing that the invasion was needed for some state purpose, it impermissibly invaded academic freedom. b. Wieman v. Updegraff , 344 U.S. 183 (1952). Wieman , decided shortly after Adler , involved a state-imposed loyalty oath that required Oklahoma professors to promise that they had never been part of a communist or subversive organization. Professors at one state college refused to take the oath, and an Oklahoma taxpayer sued to block the college from paying their salaries. A concurring opinion by Justices Douglas and Frankfurter was based on First Amendment academic freedom grounds; Justice Frankfurter’s concurrence specifically emphasizes the importance of academic freedom and teaching as a profession uniquely requiring protection under the First Amendment. In Justice Frankfurter’s words: Such unwarranted inhibition upon the free spirit of teachers affects not only those who . . . are immediately before the Court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers. . . . Teachers must . . . be exemplars of open-mindedness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied to them. They must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma. c. Sweezy v. New Hampshire , 354 U.S. 234 (1957). Sweezy marks a landmark in the Court’s recognition and acceptance of academic freedom, and of academic freedom’s grounding in the Constitution. Sweezy, a professor at the University of New Hampshire, was interrogated by the New Hampshire Attorney General about his suspected affiliations with communism. Sweezy refused to answer a number of questions about his lectures and writings, but did say that he thought Marxism was morally superior to capitalism. The Supreme Court accepted Justice Frankfurter’s reasoning from Wieman and stated its belief that academic freedom is protected by the Constitution. In addition, Justice Frankfurter outlined the “four essential freedoms” of a university: "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." d. Keyishian v. Bd. of Regents , 385 U.S. 589 (1967). This case finally extended First Amendment protection to academic freedom. Faculty at the State University of New York at Buffalo were forced to sign documents swearing that they were not members of the Communist Party. The faculty members refused to sign the documents and were fired as a result. Because of Adler , the New York State Law prohibiting membership in subversive groups was still in effect. This time, however, the Court specifically overturned its decision in Adler , ruling that by imposing a loyalty oath and prohibiting membership in “subversive groups,” the law unconstitutionally infringed on academic freedom and freedom of association. As the Court held: “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

B. Contractual Rights

Sometimes colleges and universities decide to bestow specific academic freedom rights upon professors via school policy. Internal sources of contractual obligations may include institutional rules and regulations, letters of appointment, faculty handbooks, and, where applicable, collective bargaining agreements. Academic freedom rights are often explicitly incorporated into faculty handbooks, which are sometimes held to be legally binding contracts. See, e.g., Greene v. Howard University , 412 F.2d 1128 (D.C. Cir. 1969) (ruling faculty handbook “govern[ed] the relationship between faculty members and the university”). See also Jim Jackson, “Express and Implied Contractual Rights to Academic Freedom in the United States,” 22 Hamline Law Review 467 (Winter 1999). See generally AAUP Legal Technical Assistance Guide, “Faculty Handbooks As Enforceable Contracts: A State Guide” (2005 ed.).

C. Academic Custom and Usage

Academic freedom is also often protected as part of "academic custom" or "academic common law." Courts analyzing claims of academic freedom often turn to the AAUP’s Joint 1940 Statement of Principles on Academic Freedom and Tenure . The 1940 Statement provides a measured definition of academic freedom, stating:

Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties. . . . Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. . . . College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

AAUP, Policy Documents and Reports , 3-4 (10th ed. 2006) (hereafter “Redbook”). As the U.S. Court of Appeals for the District of Columbia Circuit observed in Greene v. Howard University :

Contracts are written, and are to be read, by reference to the norms of conduct and expectations founded upon them. This is especially true of contracts in and among a community of scholars, which is what a university is. The readings of the market place are not invariably apt in this non-commercial context.

412 F.2d at 1135.

The U.S. Supreme Court explicitly recognized the importance of this type of contextual analysis in Perry v. Sindermann , 408 U.S. 593, 601 (1972). In Perry , the Court held that just as there may be a "common law of a particular industry or of a particular plan," so there may be an "unwritten 'common law' in a particular university" so that even though no explicit tenure system exists, the college may "nonetheless . . . have created such a system in practice.” Similarly, another federal appeals court found that jointly issued statements of AAUP and other higher education organizations, such as the 1940 Statement , "represent widely shared norms within the academic community" and, therefore, may be relied upon to interpret academic contracts. Browzin v. Catholic University of America , 527 F.2d 843, 848 n. 8 (D.C. Cir. 1975); see also Roemer v. Board of Public Works of Maryland , 426 U.S. 736 (1976) (relying on 1940 Statement ’s definite of academic freedom); Tilton v. Richardson , 403 U.S. 672 (1971) (same); Bason v. American University , 414 A.2d 522 (D.C. 1980) (noting the "customs and practices of the university"); Board of Regents of Kentucky State University v. Gale , 898 S.W.2d 517 (Ky. Ct. App. 1995) (examining the "custom" of the academic community in defining the meaning of "endowed chair" and whether the position carried tenure).

Faculty Academic Freedom in the Classroom

One of the most fertile areas for claims of academic freedom and First Amendment protection is, of course, classroom teaching. Speech by professors in the classroom at public institutions is generally protected under the First Amendment and under the professional concept of academic freedom if the speech is relevant to the subject matter of the course. See, e.g., Kracunas v. Iona College , 119 F.3d 80, 88 & n. 5 (2d Cir. 1997) (applying the "germaneness" standard to reject professor's academic freedom claim because "his conduct [could not] be seen as appropriate to further a pedagogical purpose," but noting that "[t]eachers of drama, dance, music, and athletics, for example, appropriately teach, in part, by gesture and touching"). At private institutions, of course, the First Amendment does not apply, but professors at many institutions are protected by a tapestry of sources that could include employment contracts, institutional practice, and state court decisions. The specific areas of classroom speech could include, among others, the following:

A. Classroom Teaching Methods

Are faculty members able to select and use pedagogical methods they believe will be effective in teaching the subject matter in which they are expert? Faculty members are, of course, uniquely positioned to determine appropriate teaching methods. Courts may restrict professors’ autonomy, however, when judges perceive teaching methods to cross the line from pedagogical choice to sexual harassment or methods irrelevant to the topic at hand.

1. Hardy v. Jefferson Community College , 260 F.3d 671 (6th Cir. 2001), cert. denied , 535 U.S. 970 (2002). In Hardy , an African-American student and a "prominent citizen" complained about the allegedly offensive language used by Kenneth E. Hardy, an adjunct communications professor, in a lecture on language and social constructivism in his "Introduction to Interpersonal Communication" course. The students were asked to examine how language "is used to marginalize minorities and other oppressed groups in society," and the discussion included examples of such terms as "bitch," "faggot," and “nigger." While the administration had previously informed Professor Hardy that he was scheduled to teach courses in the fall, after the controversy erupted the administration told him that no classes were available. A federal appeals court concluded that the topic of the class – "race, gender, and power conflicts in our society" – was a matter of public concern and held that "a teacher’s in-class speech deserves constitutional protection." The court opined: "Reasonable school officials should have known that such speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment." 2. Vega v. Miller , 273 F.3d 460 (2d Cir. 2001), cert. denied , 535 U.S. 1097 (2002) Not all courts agree that individual professors have the academic freedom to select the pedagogical tools they consider most appropriate to teach their subject matter. In Vega v. Miller , for example, Edward Vega, a non-tenure-track professor of English, sued the New York Maritime College when the state-run college declined to reappoint him after he led what the college referred to as an "offensive" classroom exercise in “clustering" (or word association) in a remedial English class. The clustering exercise required students to select a topic and then call out words related to the topic. In Professor Vega's summer 1994 class, the students selected the topic of sex, and the students called out a variety of words and phrases, from "marriage" to "fellatio." Administrators found that the professor's conduct "could be considered sexual harassment, and could create liability for the college," and therefore decided not to renew his contract. Vega argued that the nonreappointment violated his constitutional academic freedom. The federal appeals court sided with the administrators, holding that at the time they made their decision on Vega’s contract, no court opinion had conclusively determined that an administration’s discipline of a professor for not ending a class exercise violated the professor’s clearly established First Amendment academic freedom rights. The same court has, however, recognized as constitutionally protected a professor’s First Amendment academic freedom "based on [his] discussion of controversial topics in the classroom." Dube v. State University of New York , 900 F.2d 587, 597-98 (2d Cir. 1990), cert. denied , 501 U.S. 1211 (1991). See also Cohen v. San Bernardino Valley College , 92F.3d 968 (9th Cir. 1996), cert. denied , 520 U.S. 1140 (1997), and Silva v. University of New Hampshire , 888 F. Supp. 293 (D.N.H. 1988) (declining to apply institutional sexual harassment policies to punish professor who used "legitimate pedagogical reasons,” which included provocative language, to illustrate points in class and to sustain his students' interest in the subject matter of the course). 3. Bonnell v. Lorenzo (Macomb Community College), 241 F.3d 800, cert. denied , 534 U.S. 951 (2001). Of course, a professor's First Amendment right to academic freedom is not absolute. As First Amendment and academic freedom scholar William Van Alstyne has said, “There is . . . nothing . . . that assumes that the First Amendment subset of academic freedom is a total absolute, any more than freedom of speech is itself an exclusive value prized literally above all else.” Van Alstyne, "The Specific Theory of Academic Freedom and the General Issue of Civil Liberty," in The Concept of Academic Freedom 59, 78 (Edmund L. Pincoffs ed., 1972). And so, even when courts recognize the First Amendment right of academic freedom for individual faculty members, courts often balance that interest against other concerns. In Bonnell v. Lorenzo , a federal appeals court upheld Macomb Community College’s suspension of John Bonnell, a professor of English, for creating a hostile learning environment. A female student sued the professor, claiming that he had repeatedly used lewd and graphic language in his English class. While recognizing the importance of the First Amendment academic freedom of the professor, the court concluded that “[w]hile a professor's rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student’s right to learn in a hostile-free environment.” Significantly, unlike the speech in Hardy , the court found Bonnell’s use of vulgar language “not germane to the subject matter” and therefore unprotected.

B. Curricular Choices and Academic Freedom

The right of teachers "to freedom in the classroom in discussing their subject" under the 1940 Statement is inextricably linked to the rights of professors to determine the content of their courses. The AAUP’s Statement on Government of Colleges and Universities provides that faculty have "primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction." As one commentator noted: "Faculty will always have the best understanding of what is essential in a field and how it is evolving." Steven G. Poskanzer, Higher Education Law: The Faculty 91 (The Johns Hopkins University Press 2002). Moreover, the expertise of a professor and a department helps insulate administrators and trustees from political pressures that may flow from particularly controversial courses.

1. Axson-Flynn v. Johnson , 356 F.3d 1277 (10th Cir. 2004). One case that directly raises the issue of academic freedom in determining curriculum—as well as the tension between the academic freedom of professors and the academic freedom of students—is Axson-Flynn v. Johnson . Christina Axson-Flynn was a Mormon student at the University of Utah, who, she says, told the theater department before being accepted that she would not "take the name of God or Christ in vain" or use certain "offensive" words. After she was accepted into the program, she changed some words in assigned scripts for in-class performances so as to avoid using words she found offensive. Her professors warned her that she would not be able to change scripts in future assignments. Axson-Flynn dropped out of the special theater program and sued her professors, arguing that her First Amendment rights to free speech and free exercise of religion had been violated. In 2001, a federal trial court ruled against Axson-Flynn. The court reasoned that if the program requirements constituted a First Amendment violation, "then a believer in ‘creationism' could not be required to discuss and master the theory of evolution in a science class; a neo-Nazi could refuse to discuss, write or consider the Holocaust in a critical manner in a history class." The federal appeals court agreed that courts should defer to faculty members’ professional judgment with respect to teaching and curriculum, but sent the case back for the trial court to determine whether the professors’ rationale for compelling Axson-Flynn to perform the scripts as written “was truly pedagogical or whether it was a pretext for religious discrimination.” The court ruled that the teachers were allowed to compel speech from Axson-Flynn as long as doing so was “reasonably related to pedagogical concerns.” Although the court did not recognize a specific right to academic freedom within the First Amendment, it did observe that within the university context, the First Amendment had special significance. 2. Yacovelli v. Moeser , Case No. 02-CV-596 (M. D. N.C., Aug. 15, 2002), aff'd ,Case No. 02-1889 (4th Cir. Aug. 19, 2002). One widely publicized example of a curriculum controversy involved the 2002 summer reading program at the University of North Carolina (UNC) at Chapel Hill. At the beginning of the school year, UNC scheduled a schoolwide discussion for all new students based on the book Approaching the Qur'an: The Early Revelations , by Michael Sells, a professor at Haverford College. A group of students and taxpayers sued to halt the summer program, arguing that the assignment of the book violated the First Amendment doctrine of separation of church and state under the "guise of academic freedom, which is often nothing other than political correctness in the university setting." The university argued that the program was not endorsing or promoting a particular religion, and that if the court issued an injunction it would chill academic freedom because "the decision was entirely secular, academic, and pedagogical." As one English professor inquired: "Would next year’s committee be forbidden to require incoming students to read The Iliad , on the grounds that it could encourage worship of strange, disgraceful gods and encourage pillage and rape?" The federal trial court ruled in favor of the university and denied the plaintiffs’ request to halt the reading sections, holding: "There is obviously a secular purpose with regard to developing critical thinking, [and] enhancing the intellectual atmosphere of a school for incoming students." The day of the reading program, the federal appeals court upheld the trial court's ruling. In general, academic courses are not subject to a legal mandate for "equal time" to explore the “other side” of an issue. As Justice Stevens noted in his concurrence in the Supreme Court case Widmar v. Vincent , 454 U.S. 263,278-79 (1981), the "judgments" about whether to prefer a student rehearsal of Hamlet or the showing of Mickey Mouse cartoons "should be made by academicians, not by federal judges." 3. Linnemeir v. Board of Trustees , Indiana University-Purdue University, Fort Wayne, 260 F.3d 757 (7th Cir. 2001). Similarly, another federal appellate court ruled that faculty approval of a controversial play selected by a student for his senior thesis, which offended some religious individuals, did not violate the First Amendment. In Linnemeir , some Indiana taxpayers and state legislators sued to force Indiana University-Purdue University (IPFW) to halt the campus production of Terrence McNally's play Corpus Christi , which had been unanimously approved by the theater department faculty committee. The taxpayers and legislators argued that the play was an “undisguised attack on Christianity and the Founder of Christianity, Jesus Christ," and claimed that performance of the play on a public university campus therefore violated the First Amendment’s guarantee of separation of church and state. The federal appeals court permitted the play to be performed. The majority opined: "The contention that the First Amendment forbids a state university to provide avenue for the expression of views antagonistic to conventional Christian beliefs is absurd." It continued: "Classrooms are not public forums; but the school authorities and the teachers, not the courts, decide whether classroom instruction shall include works by blasphemers. . . . Academic freedom and states' rights alike demand deference to educational judgments that are not invidious." 4. Edwards v. California University of Pennsylvania , 156 F.3d 488 (3rd Cir. 1998), cert. denied , 525 U.S. 1143 (1999). Another federal appellate court has ruled that professors have no First Amendment right of academic freedom to determine appropriate curriculum, though under somewhat different circumstances. In Edwards , Dilawar M. Edwards, a tenured professor in media studies, sued the administration for violating his right to free speech by restricting his choice of classroom materials in an educational media course. The classroom materials, which emphasized issues of “bias, censorship, religion and humanism,” had been disapproved by the media studies department, which had voted to use an earlier version of the syllabus. The court concluded that because “a public university professor does not have a First Amendment right to decide what will be taught in the classroom,” it was not relevant whether the professor’s course content was “reasonably related to a legitimate educational interest.” The court’s conclusion, however, appears to have been influenced by the fact that Edwards’ departmental colleagues had approved a different syllabus – reinforcing the principle that professors as a whole, if not always individual professors, have the right to determine curricular focus. 5. FAIR v. Rumsfeld , 547 U.S. (2006). This Supreme Court case involved a federal law known as the Solomon Amendment, which required that colleges and universities allow the military full access to recruiting on campus. Any university excluding military recruiters from campus faced a loss of federal funding, even if only one component of the university flouted the law. Because of the military’s “don’t ask, don’t tell” policy on sexual orientation, a number of law schools objected to the access requirement, arguing that the requirement violated the schools’ own anti-discrimination policies. A coalition of law schools sued the federal government, arguing that having to choose between violating their nondiscrimination policies and losing millions of dollars of federal funding violated their First Amendment rights to academic freedom, free speech, and freedom of association. The Supreme Court decided that the law schools must permit the military to recruit on campus. Reasoning that law schools still had a number of other ways to publicize their objections to the military’s policies, including signs and protests, the Court concluded that “the Solomon Amendment neither limits what law schools may say nor requires them to say anything.”

C. Grading Rights

One recurring issue is whether a university administration has the right to change a grade given by a faculty member to a student—or, to phrase the issue differently, whether the faculty member has the academic freedom to assign the grade without interference or second-guessing by administrators. The answer to the first formulation of the issue (at least under current case law) is generally yes; the answer to the second is that it depends on the court.

The AAUP affirms the right of faculty members to assign student grades and oversee any changes to grades. Under the 1940 Statement of Principles on Academic Freedom and Tenure , one faculty right that flows from a "teacher's freedom in the classroom" is the assessment of student academic performance, including the assignment of particular grades. In addition, the AAUP Statement on the Assignment of Course Grades and Student Appeals sets forth principles to be followed in assigning and changing grades, with a focus on faculty control over assignment and review of grades.

Some courts have acknowledged that instructors have the right to assign grades to students. See, e.g., Regents of the University of Michigan v. Ewing , 474 U.S. 214 (1985) (noting that “judges . . . should show great respect for the faculty's professional judgment”); Settle v. Dickson County School Board , 53 F.3d 152 (6th Cir. 1995) (observing, in a K-12 case, that “teachers . . . must be given broad discretion to give grades”). However, professors may be required to conform to university-wide grading procedures, particularly when the policies have been developed or approved by the faculty. For instance, in Wozniak v. Conry , 236 F.3d 888(7th Cir.), cert. denied , 121 S.Ct. 2243 (2001), a federal appeals court ruled that the University of Illinois at Urbana-Champaign did not violate due process rights of a tenured professor at the undergraduate engineering school because he failed to comply with established grading policies when he refused to submit the required materials for review: "No person has a fundamental right to teach undergraduate engineering classes without following the university's grading procedures.”

Courts have generally distinguished, however, between the right to assign a grade and the right not to have the institution itself change the grade. For instance, in Parate v. Isibor (Tennessee State University), 868 F.2d 821 (6th Cir. 1986), a federal appeals court agreed that requiring the professor himself to change a grade violated the professor’s First Amendment right “to send a specific message to the student,” but simultaneously held that a professor "has no constitutional interest in the grades which his students ultimately receive." The court therefore permitted the administration to change the grade, even if the administration could not compel the professor to do so.

In 2001, another federal appeals court went even further, rejecting the reasoning in Parate . In Brown v. Armenti , 247 F.3d 69 (3rd Cir. 2001), a tenured professor at the California University of Pennsylvania objected to being ordered by the president of the university to change a student's grade from an "F" to an incomplete. The Third Circuit ruled in favor of the university president, concluding that a "public university professor does not have a First Amendment right to expression via the school's grade assignment procedures." It reasoned: "Because grading is pedagogic, the assignment of the grade is subsumed under the university's freedom to determine how a course is to be taught."

(For a more in-depth discussion of the First Amendment and academic freedom implications of grading, see Donna Euben, Who Grades Students? (2001).)

D. Legislative Intrusion into Faculty Speech in the Classroom

In recent years, through “Academic Bill of Rights” proposals (ABOR) and their successors, “Intellectual Diversity in Higher Education” bills, state legislators have injected themselves into curricular decision-making. Although legislative language varies from state to state, the overall thrust has been the same: to increase so-called political diversity in the faculty, and to expand both legislative oversight over what professors may teach and the power of students to challenge teachings methods or ideologies with which they disagree.

Some of the provisions that pose the greatest risk of infringement on faculty members’ First Amendment and academic freedom rights include requirements that faculty members provide students with information on “dissenting viewpoints,” regardless of scholarly consensus in the field; the significant influence that student complaints would have over whether faculty members are seen to be introducing “controversial” material into the classroom; and increased administrative oversight over professors’ freedom to grade their students. For more background, see “ The ‘Academic Bill of Rights’ – Coming to Your Campus ."

So far, faculty members and university administrations have been largely successful in fending off these challenges to academic freedom. Individual faculty members and higher education associations and leaders have educated legislators about the policies that already exist at many institutions – many based in substantial part on AAUP model policies – and the absence of a real threat to students’ freedom from indoctrination, politically-motivated grading, and other supposed dangers. Nevertheless, some states have contemplated statutes that, if passed, would represent an unprecedented incursion into professors’ First Amendment and academic freedom rights.

To take just one example, in February 2007, the Arizona state senate considered a bill that would have banned faculty members at public colleges and universities in the state from endorsing, supporting, or opposing any candidate for office, any pending legislation, or any court litigation; advocating “one side of a social, political, or cultural issue that is a matter of partisan controversy;” or obstructing military recruiting activity on campus or supporting those who do. See " $500 Fines for Political Profs ," Inside Higher Ed (Feb. 19, 2007). Failure to comply with the restrictions could have resulted in criminal prosecutions and fines of up to $500. The legislative sponsor, state senator and Republican majority leader Thayer Verschoor, cited a 14-year-oldincident from when he was a student, in which he was offended by a classroom exercise (in a class in which he was not enrolled) that required male students to dress up like women. Rejecting the charge that the bill violated academic freedom, Sen. Verschoor said, “You can speak about any subject you want – you just don’t take a position.” Even David Horowitz, father of the ABOR, opposed the policy, saying that he had never advocated limits imposed by the legislature on faculty speech in the classroom. Id . Although the bill did not pass, it hints at the anxiety felt in many states about the bedrock principles of academic freedom, which are inextricably tied to the protections of the First Amendment.

Because no statutes of this type have yet passed a state legislature, no courts have yet tackled the contours of their entrenchment onto academic freedom rights. Nevertheless, AAUP policy on this issue is quite clear. As the AAUP Statement on the Academic Bill of Rights says, “The Academic Bill of Rights . . . threatens to impose administrative and legislative oversight on the professional judgment of faculty, to deprive professors of the authority necessary for teaching, and to prohibit academic institutions from making the decisions that are necessary for the advancement of knowledge . . . . The AAUP has consistently held that academic freedom can only be maintained so long as faculty remain autonomous and self-governing.” Indeed, as historian Walter Metzger said a quarter of a century ago:

[A state legislature] invades the very core of academic freedom . . . when it dictates the contents of any course at any level or for any purpose. . . . [Doing so] converts the university into a bureau of public administration, the subject into a vehicle for partisan politics or lay morality, and the act of teaching into a species of ventriloquism. . . . The central precepts of academic freedom . . . are that professors should say what they believe without fear or favor and that universities should appoint meritorious persons, not followers of a diversity of party lines.

Walter R. Metzger, "Comments on Creationism and the Classroom," Academe 12 (Mar.-Apr. 1982). For further ideas on how to approach legislators about the importance of preserving academic freedom at public institutions, see the appendix to this outline, as well as the many resources on the Government Relations section of the AAUP website.

Faculty Expression in Institutional Matters

In addition to their teaching, research, and service obligations, faculty members frequently help run their academic institutions through shared governance. Legal issues sometimes arise when faculty members speak out on institutional matters—such as the process by which a college president is appointed or the negative consequences of a new admissions standard. Such faculty criticism is often directed at the institution's governing board, the president and other administrators, and even faculty colleagues. Courts had traditionally used a balancing test when assessing whether faculty expression at a public institution was protected; in light of a recent Supreme Court opinion, however, it is not yet clear how much latitude public faculty members have to speak, and under what circumstances.

A. “Matters of Public Concern” Test

Before 2006, federal courts relied on a “matters of public concern” test in determining whether speech by public employees – including faculty members at public institutions – was protected. Under the “matters of public concern” test, which was developed largely in cases not related to academics, a court considered whether the employee had uttered the challenged speech in the course of the employee’s job responsibilities or as a private citizen, and whether the speech addressed a “matter of public concern.” If the employee failed to show either of these things, then the speech was not protected by the First Amendment. If the professor could show that he or she spoke as a private citizen on a matter of public concern, then the court would balance the employee’s interest in speaking against the public employer’s (i.e., the university’s) interest in the overall functioning of the workplace. Only if the employee’s interest in speaking on the issue in question outweighed the employee’s interest in a functioning workplace would the employee’s speech be protected by the First Amendment.

1. Schrier v. University of Colorado. Robert Schrier, a doctor and a tenured faculty member at the University of Colorado School of Medicine, chaired the department of medicine for over 20 years until the administration removed him from that position in October 2002. Dr. Schrier opposed the Board of Regents’ decision to move the medical school to another campus. He sued the school, arguing, in part, that his removal as chair violated his First Amendment right of academic freedom. The district court rejected Dr. Schrier's legal claims. The court found that Dr. Schrier's status as a university professor, who also served as department chair, entitled him to no rights distinct from those of any other public employees. The federal appeals court affirmed the denial of Schrier's injunction by the lower court, affirming that Schrier's speech was on a matter of public concern, but ruling that the administration's interest in suppressing Schrier's speech outweighed his right to free expression. The court appeared to focus on Dr. Schrier’s status as a department chair in reaching its decision. 2. Crue v. Aiken (University of Illinois-Champaign). This case involved a challenge by faculty and students at the University of Illinois-Champaign to the administration’s policy prohibiting them from communicating with prospective student athletes. The faculty and students opposed the school's use of the Chief Illiniwek mascot, and contended, in part, that the mascot created a hostile learning environment for Native American students and increased the difficulty of recruiting Native American students to the campus. They wished to contact prospective student athletes to make them aware of this controversy. The district court ruled in favor of the faculty and students, finding that the administration's directive violated the First Amendment. The Seventh Circuit, in a 2-1 decision, ruled that an administrative directive prohibiting faculty and students from communicating with prospective student athletes violated the First Amendment, because the directive constituted a prior restraint. The majority also concluded that the chancellor's directive was “a broad prohibition” on speech that was “on a matter of significant important and public concern” and therefore was protected speech.

B. “Official Duties” Test – Garcetti v. Ceballos and Developing Law

Of course, in the academic context, professors frequently speak on “matters of public concern” – the economy, politics, health, global warming, etc. And that speech is also an integral part of their job as public employees. In 2006, the Supreme Court decided a case that, in many ways, adopted the most restrictive understanding of public employees’ speech rights. In Garcetti v. Ceballos , 547 U.S. –, 126 S.Ct. 1951 (2006), the U.S. Supreme Court ruled that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” No more balancing test or “public concern” inquiry need be done. The court explicitly set aside speech in the academic context, however, holding that “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for” by the Court’s decision. The court therefore concluded that “we need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Justice Souter added in dissent that “I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”

C. Post- Garcetti Cases

The cases that have been decided on public employees’ speech rights since Garcetti give some window into the possible effect on public university faculty members’ speech rights; however, because the courts so far have considered only secondary and elementary schoolteachers, not university faculty, there is no firm guidance yet on how much protection courts might give to faculty members speaking in the course of their jobs.

1. Casey v. West Las Vegas Independent School District , 473 F.3d 1323 (10th Cir. 2007). In Casey , a school district superintendent brought a retaliation claim against the school board, asserting that she was demoted because of her criticism of the board’s decisions concerning the Head Start program. The court ruled that the superintendent’s job duties included reporting to the board about the Head Start program, and the superintendent’s speech therefore was not constitutionally protected. 2. Ryan v. Shawnee Mission Unified School District No. 512, 437 F. Supp. 2d 1233 (D. Kan. 2006). Ryan was a physical therapist who worked at a school district with children whose health problems interfered with their education. Ryan complained to her director that too many children needed her services, and that some were being denied adequate care. As a result, she was eventually asked to resign. The federal trial court decided that most of Ryan’s speech was made not as a citizen but as part of her job duties, and that she could thus be fired for complaining.

3. Mayer v. Monroe County Community School Corporation , 2007 U.S.App. LEXIS 1469 (7th Cir. Jan. 24, 2007). Although this case took place in an elementary school rather than in an institution of higher education, it helps illustrate how some courts might approach higher education cases under Garcetti . Deborah Mayer, a probationary first-year elementary school teacher, was asked by her students if she participated in political demonstrations; she replied that she honked her horn in support of a peace demonstration. After some parents complained, Mayer’s contract was non-renewed, and Mayer sued, claiming that the school’s decision was retaliatory and was a violation of her First Amendment rights. The trial court ruled in favor of the school district, concluding, among other things, that “because the uncontroverted facts establish that Ms. Mayer expressed her views to her students at a time and place and as part of her official classroom instruction,” she was acting as an “employee,” rather than as a “citizen,” leaving her speech constitutionally unprotected. The federal appeals court affirmed the trial court’s decision. Noting that primary and secondary school teachers must stick to the prescribed curriculum, including any prescribed viewpoint, the appeals court reasoned: “This is so in part because the school system does not ‘regulate’ teachers’ speech as much as it hires that speech. Expression is teacher’s stock in trade, the commodity she sells to her employer in exchange for as alary.” Although the case did not raise issues of post-secondary instruction, the court remarked that because college professors are hired to instruct students, “employers are entitled to control speech from an instructor to a student on college grounds during working hours.” Although this part of the court’s opinion is not binding on other courts examining issues of faculty speech, it remains to be seen whether courts will adopt this reasoning as more faculty speech cases arise. 4. Head v. Bd. of Trustees of California State University , 2007 Cal. App. Unpub. LEXIS 393 (Cal. Ct. App. 2007) (unpub.). Stephen Head, a student in a teaching credential program, alleged that because he disagreed with the professor’s viewpoint in a required class on multiculturalism, he received an F in the course and was placed on academic probation. An internal subcommittee rejected Head’s grievance, finding that the professor had given Head grading criteria on the course syllabus, assessments on returned assignments, and extended opportunities to resubmit corrected work. Head then sued the university, arguing that his First Amendment and due process rights were violated by the curriculum, his grade, his treatment during the course, and the “professional dispositions” that teaching credential candidates had to demonstrate. He asked that the university change his failing grade to an A or a B, and asked for an injunction against the use of the professional dispositions, against infringement of the constitutionally protected speech of teaching credential students, and against grade discrimination against “White, White-appearing, or male” credential candidates. The trial court denied Head’s petition, and the appeals court upheld the lower court’s decision, firmly holding that “the First Amendment broadly protects academic freedom in public colleges and universities.” With respect to Head’s request that his grade be changed, the appeals court emphasized that academic decisionmaking is not traditionally appropriate for judicial review and that judges should respect a faculty member’s professional judgment. On Head’s free speech claims, the appeals court indicated that instructors can exercise reasonable control over student expression during class to ensure that students learn the lessons that are being taught. The court further held:

Public university instructors are not required by the First Amendment to provide class time for students to voice views that contradict the material being taught or interfere with16instruction or the educational mission. Although the First Amendment may require an instructor to allow students to express opposing views and values to some extent where the instructor invites expression of students’ personal opinions and ideas, nothing in the First Amendment prevents an instructor from refocusing classroom discussions and limiting students’ expression to effectively teach.

The court concluded by affirming that “institutional assessments of a student’s academic performance . . . necessarily involve academic determinations requiring the special expertise of educators.”

5. Payne v. University of Arkansas Fort Smith , 2006 U.S. Dist. LEXIS 52806(W.D. Ark. July 26, 2006). Diana Payne, a tenured professor at the University of Arkansas, was fired after nineteen years of service. Before she was fired, among other things, Payne complained to a university administrator about a new university policy governing time spent on campus, arguing that the policy was a “huge disservice to the community.” She contended that in retaliation for her email complaint she was assigned the rank of Instructor, rather than the higher rank of Assistant Professor. The court determined that even though the email invoked community concerns, the “crux” of it was Payne’s “dissatisfaction with an internal employment policy and not an issue of public concern.” The court therefore concluded that her email was not protected speech under the First Amendment, and dismissed Payne’s claim of retaliation.

D. Other Standards for Protection of Speech

1. Crue v. Aiken , 370 F.3d 668 (7th Cir. 2004). Crue v. Aiken , described earlier, arose from a dispute at the University of Illinois involving its then-mascot Chief Illiniwek. Faculty and students at the university opposed the administration’s policy prohibiting communication with prospective student athletes, arguing that they wanted to be able to inform prospective students about the racial injustice aspects of the use of the mascot. A previous Supreme Court opinion had held that when the government seeks to prohibit speech in advance (rather than punishing speech after the fact), the government employer must show that the impact of the expression on the employer’s (here, the university’s) operations is so significant that it outweighs the interest of any other audience in hearing the speech. United States v. NTEU , 513 U.S. 454 (1995). Relying on NTEU , the appeals court in Crue held that the faculty’s and students’ right to question what they believed was a racist practice outweighed the University’s interest in halting the speech. Therefore, if a professor-plaintiff can characterize a university action as a restraint imposed on as yet unspoken speech, instead of as punishment for speech that has already taken place, the faculty member may be more likely to win his/her case.

Academic Freedom and the Internet

In general, the intersection of academic freedom and the Internet is guided by the same rules that govern other areas of faculty speech. However, several important cases have arisen in the context of regulation of faculty access to the internet.

A. Use of University-Owned Computers and E-mail

In Urofsky v. Gilmore , 216 F.3d 401 (4th Cir. 2000), a federal appeals court upheld the constitutionality of a Virginia law that banned professors from using university computers to “access, download, print or store any information infrastructure files or services having sexually explicit content.” The law did allow for one small exception: a professor could apply to the university to conduct research on a sexually explicit topic, and as long as the university considered the project to be “bona fide,” the professor would be permitted to conduct research on the topic. Relying heavily on this exception, the court upheld the law. The court opined that the university, rather than individual professors, holds the First Amendment right to research, and emphasized that without the exception, the law might infringe upon the universities’ First Amendment rights.

The reasoning in Urofsky ─ which could potentially be extended to state-imposed bans on research regarding other controversial topics – has been followed by other circuits and was even cited in the Garcetti decision. See, for example, Harrison v. Coffman , 111 F. Supp. 2d1130, 1131 (D. Ark. 2000); Johnson-Kurek v. Abu-Absi , 423 F.3d 590, 593 (6th Cir. 2005); Campbell v. Galloway , 483 F.3d 258, 266 (4th Cir. 2007); Erickson v. City of Topeka , 209 F. Supp. 2d 1131, 1143 (D. Kan. 2002). Similarly, in Loving v. Boren , 956 F. Supp. 953, 955 (D. Okla. 1997), a federal trial court held that the University of Oklahoma did not violate a journalism professor’s First Amendment rights by blocking access from his campus computer to an “alt.sex” host, because the professor could obtain the material he sought through a commercial on-line service.

In Bowers v. Rector & Visitors of the University of Virginia , 478 F. Supp. 2d 874, 878(D. Va. 2007), Bowers worked in the human resources (HR) department for the University of Virginia. She attended a meeting about pay increases that was held by the NAACP, of which she was a member. One of her co-workers in the HR department asked Bowers to forward her the information from the NAACP meeting. The co-worker then sent out the NAACP information to dozens of other people, one of whom sent the email out to “hundreds” of people. Bowers was fired for using her university email account to send out this email. The court held that Bower’s speech in her email was not protected, since she used her university email account to send the information. In addition, the email appeared to be from Bowers as an HR employee rather than as a private citizen. Her email was thus not protected by the First Amendment.

In addition to the First Amendment, the Fourth Amendment to the Constitution, which protects citizens from unreasonable searches and seizures by the government, comes into play incases of possible violations of email privacy at public institutions. For a case list, see Donna Euben, Academic Freedom of Professors and Institutions (2002), pp. 22-24.

According to AAUP policy, expression in cyberspace does not “justify alteration or dilution of basic principles of academic freedom and free inquiry within the academic community.” Academic Freedom and Electronic Communications, Academe (July-August1997). See the Appendix to this outline for suggestions on developing a sustainable university policy regarding the use and privacy of email.

B. Faculty Websites and Academic Freedom

Faculty are sometimes given space on a university web server for faculty web pages. Courts have generally held that because the university server is not a public forum, public universities can regulate, at least to some extent, the content put on the web pages. If the university opens up the websites to the general public (via online message boards or other public forums), however, then the university is likely to be restricted from imposing content-based bans on speech expressed there. Putnam Pit, Inc. v. City of Cookeville , 221 F.3d 834, 844 (6th Cir.2000). As a general rule, however, public universities may regulate content on faculty webpages as long as the restrictions are reasonable and are not simply an attempt to suppress faculty viewpoint.

In addition to faculty members’ conditional right to communicate on the internet, students are sometimes said to have a right to receive speech. Meyer v. Nebraska , 262 U.S. 390(U.S. 1923); see also Lamont v. Postmaster General , 381 U.S. 301 (U.S. 1965) and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748 (U.S. 1976).”The U.S. Supreme Court has referred to a First Amendment right to receive information and ideas, and that freedom of speech necessarily protects the right to receive.” Students’ First Amendment right to receive their professors’ speech through the internet – as yet untested in court – could further constrain the ability of public universities to tightly restrict professors’ online speech.

A Note on Private Universities

Private universities are largely not subject to the constitutional requirements described above, and students, faculty, and staff at most private universities therefore do not enjoy a “First Amendment” right of protection against discipline for speech-related infractions. 3 They may, however, have certain free-speech-related rights deriving not from the First Amendment but from policies adopted by the institution. 4 Faculty at private schools, therefore, have a particularly strong interest in having principles of academic freedom written into their employment contracts and faculty handbooks.

Some thoughts on defining and protecting faculty academic freedom, and talking to legislators, administrators, and others about academic freedom and appropriate policies

Locating your rights

Often the answer to whether something is protected by academic freedom or the First Amendment is, ¡§it depends.¡¨ You can, however, try to make an educated assessment of your rights and obligations. Although this list is by no means exhaustive, it will help in thinking about where to go to determine the scope of your rights and the circumstances in which the institution can restrict them:

If so, the First Amendment generally applies – but, as described above, the First Amendment and academic freedom are not coextensive, and the law is quite unsettled in some areas.
Do you have a faculty handbook and/or collective bargaining contract? They may further define the scope of academic freedom.
Has your institution taken steps to restrict speech rights in area in which speech rights may be lawfully restricted (i.e., on university-wide computer systems)? If so, have they done so clearly and consistently, and in a manner that does not depend upon the content of the speech?
Was the speech in question clearly related to the internal administration of the university (in which case universities have better legal authority for restricting it),or was it related to scholarship and other academic issues (in which case there may be a stronger argument that it should be protected by the First Amendment)?
Was the conduct "germane to the subject matter"? If so, there is a stronger argument for protection under the First Amendment.
Are you at a private school? If so, look to your employment contract, faculty handbook, and other university policies.

Working with university administrators on general policies:

Employment contracts and employee handbooks are good places to codify a university's policy towards academic freedom. The Redbook, of course, provides a number of model policies for the protection of academic freedom and a number of other issues.
Many universities have implemented anti-harassment policies. Harassment policies should track the discrimination laws and be applied so as to recognize the different types of issues that arise in the context of higher education. Anti-discrimination policies should regulate conduct, not the content of speech.
University officials should articulate values of tolerance and civility, and respond with “more speech" when racist or sexist expression takes place.
Content-neutral regulations can be used to limit disruptive behavior and expression (e.g., rules against fighting words, disturbing the peace, alcohol and drug abuse, vandalism of property, arson).

Developing an email use policy:

Every college or university should make clear, to all users, any exceptions it considers it must impose upon the privacy of electronic communications.
There must be substantial faculty involvement both in the formulation and in the application (with due process) of any such exceptions.
Third, the general standard of e-mail privacy should be that which is assured to persons who send and receive sealed envelopes through the physical mail system—that envelopes would not be opened by university officials in the absence of exigent circumstances (e.g., leaking a noxious substance, indicia of a bomb, etc.).
If a need arises to divert or intercept a private e-mail message, both sender and recipient should be notified of that prospect in ample time to pursue protective measures—save in the highly improbable case where any delay would risk danger to life, or destruction of property.
The contents of any such message that has been diverted or intercepted may not be used or disseminated more widely than the basis for such extraordinary action may warrant.

Communicating with legislators 5 :

Defining the issue in terms of civil liberties can be very helpful with the right policymaker. Anyone who is a staunch defender of free speech, etc., is usually quick to grasp the concept and its importance.
Fields of study are always evolving, and faculty have the best understanding of what is important in a field. Legislatures are not equipped to take account of the dynamic nature of academia; at institutions with shared governance, legislators can be assured that faculty members and administrators jointly reach decisions, and that another layer of oversight and review would be counterproductive and would undermine the authority of the institution itself. As the AAUP’s Statement on Professional Ethics (1987) says, “It is the mastery teachers have of their subjects and their own scholarship that entitles them toothier classrooms and to freedom in the presentation of their subjects . . . ."
In talking to legislators who may have very set ideas about "liberal" faculty, use examples that relate to hard science classes, which are usually seen as more neutral and apolitical than the social sciences. When talking about bills that would restrict professors' speech on "controversial" topics, consider giving examples of topics that are accepted by the vast majority, but disputed by a few, and talk about how requiring equal time or attention to the fringe views would give a false impression of the academic weight and disciplinary consensus of each argument/theory.
If possible, use the clip from the Colbert Report talking about how higher education is intended to take uninformed minds and send them out still uninformed. The message is that professors should respect students, but that student opinions are not appropriately on par with professors' research. If professors are to fulfill their teaching responsibilities, they must be able to challenge assumptions and instill the ability to think critically.

I sometimes find myself faced with people who say, in effect, “I pay ten percent of your salary, and that gives me the right to screen one hundred percent of your thoughts." . . . . [M]y fellow citizens[,] you have every right to know that your money is not being wasted. But you do not have the right to suggest that the biology department should make room for promoters of Intelligent Design; or that the astronomy department should take stock of the fact that many people believe more in astrology than in cosmology; or that the history department should concentrate more on great leaders and less on broad social movements; or that the philosophy department should put more emphasis on deontological rather than on utilitarian conceptions of the social contract. The people who teach these subjects in public universities actually do have expertise in their fields, an expertise they have accumulated throughout their lives. And this is why we believe that decisions about academic affairs should be conducted by means of peer review rather than by plebiscite. It’s a difficult contradiction to grasp: on the one hand, professors at public universities should be accountable and accessible to the public; but on the other hand, they should determine the intellectual direction of their fields without regard to public opinion or political fashion. This is precisely why academic freedom is so invaluable: it creates and sustains educational institutions that are independent of demographic variables. Which is to say: from Maine to California, the content of a public university education should not depend on whether 60 percent of the population doubts evolution or whether 40 percent of the population of a state believes in angels—and, more to the point, the content of a university education should be independent of whatever political party is in power at any one moment in history. 6

1. For further discussion of many of the themes covered in this outline and more, see Donna Euben, Academic Freedom of Professors and Institutions (2002) and Donna Euben, Academic Freedom and Professorial Speech (2004); this outline owes a significant debt to both outlines. In addition, 2007 summer legal intern Anna Czarples, University of Minnesota Law School class of 2008, provided significant assistance in the preparation of this outline. Back to text.

2. This article is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance. The views expressed in this article are solely the views of the author and should not be attributed to the American Association of University Professors or its officers or staff. Back to text.

3. California, however, has enshrined First Amendment-style protections for private universities as well: “No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus . . . , is protected from governmental restriction by the First Amendment ….” Cal. Educ. Code § 94367(a) (West, 1998). Back to text.

4. See, e.g., Pitzer College’s Faculty Handbook , which expressly incorporates the 1940 Statement on Academic Freedom and Tenure . Back to text.

5. With many thanks to Nicole Byrd, AAUP’s Government Relations Associate. Back to text.

6. Excerpted with permission from Bérubé’s very thought-provoking blog post on this issue, “ Academic Freedom Again .” (posted June 13, 2006). Back to text.

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Research & Learn

Table of contents, first amendment overview essays.

The essays included in this collection give overviews of some of the most important areas of First Amendment law and scholarship. FIRE hopes that these essays explain the basics of First Amendment case law and jargon in a succinct, yet informative manner. This collection will expand on a regular basis, so please check back for more content.

Chilling Effect

The "chilling effect" refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action. Read more about the chilling effect .

COVID-19 Emergency Measures and the First Amendment

The pandemic caused by the pervasive spread of the virus known as COVID-19 has placed significant pressure on government officials to act quickly to try to save lives and slow the spread of the virus. Many officials have responded with significant restrictions in the form of emergency stay-at-home orders, executive orders closing all but “essential” businesses, and bans on public gatherings — often of groups of more than 10 people. . . No matter one’s political beliefs, this time has also placed significant strains on First Amendment freedoms. Read more about COVID-19 emergency measures and the First Amendment .

Defamation refers to false statements of fact that harm another’s reputation. It encompasses both libel and slander. Libel generally refers to written defamation, while slander refers to oral defamation. Read more about defamation .

Fighting Words

The First Amendment may protect profanity directed against another. Then again, such intemperate speech may fall into a narrow, traditionally unprotected category of expression known as “fighting words.” Read more about fighting words .

Freedom of the Press

Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment. What we mean by the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and internet content. Read more about freedom of the press .

K–12 Expression and the First Amendment

Public school students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines (1969). Such rights must, however, be considered in the context of “the special characteristics of the school environment.” This means that while public school students possess free speech rights at school , school officials can regulate speech more as educators than governments can as sovereign. Read more about K–12 expression and the First Amendment .

Nude Dancing

The First Amendment protects much more than the spoken or printed word. It also protects various forms of symbolic speech and expressive conduct. The Supreme Court has ruled that the display of a red flag, the wearing of a black armband, the burning of the American flag and yes, even nude performance dancing are forms of expression that when restricted, require First Amendment review. Read more about nude dancing and the First Amendment.

Overbreadth

Overbreadth is a supremely important concept in First Amendment law and a key tool for constitutional litigators. A law is too broad—or overbroad—when it not only covers speech that ought to be proscribed but also penalizes speech that should be safeguarded. Read more about overbreadth .

Secondary Effects Doctrine

The secondary effects doctrine allows government officials to treat patently content-based laws as content-neutral. The animating logic is that government officials are not suppressing speech because of its content but because of adverse side effects associated with the speech, such as increased crime or decreased property values. Read more about the secondary effects doctrine .

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What Does the First Amendment Say About Displaying Religious Symbols?

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.

—First Amendment, U.S. Constitution

Is bringing religious symbols into public school classrooms ever OK? Many educators struggle with this question, afraid of tripping over the lines that protect our freedom of religion and separate church and state. We know the courts have interpreted the Establishment Clause of the First Amendment to mean that public schools cannot promote religious or antireligious beliefs, yet we know that teachers can teach about religion as long as (a) the content is tied to academic objectives and (b) teachers do not attempt to indoctrinate students to a certain religious belief or nonbelief. But does that answer the question about religious symbols?

Use symbols as instructional aids, not as permanent display or decoration.

While still contested in some areas, permanent displays of religious symbols on public school property violate current interpretations of the Establishment Clause. The Ten Commandments, for example, are unarguably religious in nature. Their permanent display in public schools communicates an endorsement for Christianity—just as hanging a Star of David in a classroom could make it appear that the school favors Judaism.

The Ten Commandments could, however, be temporarily displayed in a comparative literature classroom as an instructional aid in a lesson on the Bible as a literary source for other works. Instructional aids, in this context, are objects referenced during instruction to help students understand a particular religious heritage. Another example might be a Muslim prayer rug to illustrate the Islamic practice of Salah, or a poster about the Crusades in a history classroom depicting people holding crosses.

The question of “display” versus instructional use can be especially complex in art and music classes. Religious music and art can be included as part of classroom instruction, but it is the teacher’s responsibility to make the connection to academic content clear, to refrain from and confront any form of proselyting or denigration of the religion or the adherents of that religion, and to include art representing multiple religious and secular worldviews.

Think carefully when decorating for winter holidays.

Consider the Christmas tree. The Supreme Court has held that the Christmas tree is a secular symbol of the holiday season; therefore, the display of a Christmas tree in the school lobby, temporarily, does not violate the Establishment Clause. A Hanukkah menorah has also been determined to be a secular symbol and does not violate the Establishment Clause when displayed temporarily.

Even so, public schools should exercise caution in choosing to put out these symbols. Despite the Supreme Court ruling, many students and families associate them with religions and religious holidays that not all members of the school community observe or celebrate. Their display could marginalize non-Christian and non-Jewish students and be counter-productive to the positive school climate we work to establish.

Make sure your teaching reflects your classroom diversity.

Students may still feel left out, even if you teach about religion within legal parameters and use religious symbols appropriately. When learning about comparative religions, does your Buddhist student see herself in the instruction and class objectives as clearly as her Pentecostal classmate does? (Practices outlined in Teaching Tolerance’s Critical Practices for Anti-bias Education can help teachers create classroom environments that reflect diversity and support students’ religious identities.)

The Establishment Clause and the Free Exercise Clause of the First Amendment are often referred to as the Constitution’s “religion clauses” and—in certain scenarios—may seem to contradict each other. For example, does displaying student artwork that includes a religious symbol in a common area of the school violate the Establishment Clause? If the teacher covers over the religious symbol on the student’s work, is the student being denied his right to free exercise?

Educators have the responsibility to strike a balance between the two clauses, remaining within the legal parameters for honoring students’ right to free expression while avoiding messages or displays that favor one religion over another or that favor religion over non-religion. In this case, that balance could be achieved by clearly labeling the work as student art, communicating that the contents of the display are not the views of the school while honoring the religious identity of the student.

Teaching about religion and referencing religion when teaching other academic subjects presents many fine lines educators must maneuver—but they’re important and necessary lines to navigate. Teaching Tolerance and the Tanenbaum Center for Interreligious Understanding can help. We’ve teamed up to bring educators a series of five webinars about religious diversity in the classroom. The first webinar in the series, What’s law got to do with it? (and the accompanying after-session pack), provided instructional tools and strategies to ensure teaching about religion is constitutionally sound and academically responsible. Visit the links below to see blogs on the other commonly asked questions about religion and public schools.

What does religious content look like in an academic setting?
What is the difference between a moment of silence and quiet reflection?

Wicht is the senior manager for teaching and learning at Teaching Tolerance.

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The First Amendment and student media

Posted by John Bowen in Featured , Law & Ethics | 0 comments

The First Amendment to the U.S. Constitution protects free speech and press freedom of all Americans, including students in school. Although the U.S. Supreme Court has made clear these rights are not unlimited, it has also affirmed neither “students [nor] teachers shed their Constitutional rights to freedom of expression at the schoolhouse gate.”

In fact, free expression has long been regarded as the foundation of U.S. democracy. Thomas Jefferson perhaps said it best: “Our liberty depends on freedom of the press and that cannot be limited without being lost.”

The first direct experience most Americans have with press freedom, and the censorship that limits it, begins when they are in school working on student media. That’s why journalism educators, judges and First Amendment advocates have urged schools to support and foster student free expression because it is key to persuading young people “ that our Constitution is a living reality, not [just] parchment preserved under glass. ”

The Journalism Education Association , the nation’s largest association of scholastic journalism educators and secondary school media advisers, has adopted strong policy statements endorsing student freedom of expression. For our democracy to be truly participatory, JEA believes students must be empowered so they see the value of making a difference.

Beyond the implications for citizenship education, there are other solid pedagogical reasons for supporting student press freedom. Instilling in students a sense of responsibility and teaching them to make wise decisions requires giving them responsibility to act independently. For the same reasons administrators don’t conduct chemistry experiments themselves or play quarterback for the football team, sound educational outcomes come from allowing student journalists to make content decisions for themselves.

Administrators must properly define the role of the media adviser when it comes to censorship and press freedom. The Journalism Education Association’s Adviser Code of Ethics affirms the role of a teacher/adviser is to guide and instruct, not to prohibit or censor. Asking advisers to impose their content choices on student editors both offends their professional standards and results in a publication less relevant and connected to the student audience the publication exists to serve.

Many administrators have not considered an additional justification for protecting student press freedom: protection from lawsuits. A federal appeals court decision helps illustrate this.

In the case Yeo v. Town of Lexington , a community member sued a Massachusetts public high school for infringement of his First Amendment rights after editors of the school’s student yearbook and newspaper rejected advertisements he had submitted. His ad criticized school policies relating to sex education; student journalists choose not to get involved in the ongoing political conflict. In rejecting his First Amendment claim, a federal appeals court determined student editors, not school officials, had made the decision to reject the ads. Thus, the court concluded there was no First Amendment violation. Had the school principal or even the media adviser made the decision to remove the ads, the First Amendment claim might have been successful.

“School officials have an interest in [students’] autonomy to make educational decisions,” the court stated. “Officials have determined the best way to teach journalism skills is to respect the students’ editorial judgment, a degree of autonomy similar to that exercised by professional journalists. That choice by the officials parallels the allocation of responsibility for editorial judgments made by the First Amendment itself.”

The Yeo ruling supports an argument made by First Amendment advocates: Schools are most protected from legal liability when they leave content decisions to students.

One additional benefit of providing students with an outlet for free expression in school under the guidance of a faculty adviser: Students are less likely to turn to social networking sites and other outside-of-school venues to express their frustration with school policies and officials. When they are given the opportunity to speak freely as part of a student media program that teaches ethical and journalistic principles including fairness, accuracy and context, they become stronger, more responsible speakers in their lives outside of school.

Because the First Amendment is solely a limitation on government action, private schools are not limited by it in their ability to censor. However, in a number of states, most notably California , state law may provide press freedom protections to private school student journalists. And most high-achieving private schools follow the example of their public-school counterparts and provide students with a free press experience.

Press freedom terms

• First Amendment: the provision of the U.S. Constitution that provides protection to free speech and press freedom, including for students. • Censorship: prohibiting publication of information preventing reporters access to public information or creating an atmosphere in which student censor themselves. • Prior review: the act of someone outside a student publication staff, typically an administrator, requiring approval of student media content before publication. This frequently leads to prior restraint, a practice rejected by journalism educators as educationally unsound. • Prior restraint: the act of someone outside a student publication staff prohibiting student media content prior to publication. This form of censorship is frequently the result of prior review.

Four key U.S. Supreme Court decisions define student free expressions rights a school administrator should understand: Tinker v. Des Moines Independent Community School District Tinker v. Des Moines Independent Community School District (1969)

Facts: Iowa students who wore black armbands to school to express their concern about the Vietnam War were suspended. School officials claimed the message conveyed by the armbands was hurtful to others.

Ruling: Even in school, students are entitled to strong First Amendment protection. However, student free expression may be limited when school officials can demonstrate “substantial disruption of or material interference with school activities.”

Quotes: “Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect.” A school “must be able to show that its [censorship is based on] something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

How the courts apply it: When school officials can show student expression will result in a significant physical disruption of classes or school activities (fighting, vandalism, etc.) or legally invade the rights of others (libel, invasion of privacy, etc.), some limited censorship will be permitted. But controversial expression is entitled to strong First Amendment protection.

Hazelwood School District v. Kuhlmeier Hazelwood School District v. Kuhlmeier (1988)

Facts: A Missouri high school student newspaper was censored by a school principal after students prepared stories about teen pregnancy and the impact of divorce on children. The school argued students interviewed for the pregnancy story could be identified and parents hadn’t been interviewed for the divorce story.

Ruling: Despite the Tinker ruling’s recognition of strong First Amendment protection, student expression in school-sponsored venues may be subject to greater limitations when those venues have not been established as “designated public forums.” In that context, school officials can censor if they provide a reasonable education justification for their actions.

Quote: “[E]ducators 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.”

How the courts apply it: Although the decision gives school officials greater authority to censor, it doesn’t require them to do so. In addition, when a publication is operating as a designated public forum where student editors are given the authority to make their own content decisions or when the school’s action is intended to punish a particular viewpoint, censorship is not allowed.

Bethel School District v. Fraser Bethel School District v. Fraser (1986)

Facts: A Washington state high school student nominated a friend for student government in a speech at a school assembly that included sexual innuendo and puns. School officials admitted the speech was not obscene but claimed the speech was disruptive and inappropriate. They suspended the student and refused to allow him to speak at graduation. The student sued for violation of his First Amendment rights.

Ruling: Vulgar and indecent language, used in the context of a school-sponsored assembly before a captive audience, is not protected by the First Amendment and can be punished by school officials.

Quote: “Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”

How the courts apply it: Vulgar and indecent student speech, at least in a school-sponsored context or in the classroom, can be punished by school officials.

Morse v. Frederick Morse v. Frederick (2007)

Facts: An Alaska high school student held up a banner that read “Bong Hits 4 Jesus” across the street from the school as the Olympic torch relay passed. Students had been released from school to watch the event. School officials suspended him for his actions, and he sued for violation of his First Amendment rights.

Ruling: The First Amendment allows school administrators to restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.

Quote: “The ‘special characteristics of the school environment,’ and the governmental interest in stopping student drug abuse … allow schools to restrict student expression that they reasonably regard as promoting illegal drug use.”

How the courts apply it: Although advocacy of illegal drug use is not protected, speech that can plausibly be interpreted as commenting on a political or social issue, including the “war on drugs” or marijuana legalization, is protected.

In light of these four court decisions , most legal scholars conclude there are only four legally permissible justifications for censorship of student expression by school officials.

1. When the expression will create a material and substantial disruption of school activities or an invasion of the rights of others – Tinker

2. When the expression is pervasively vulgar, lewd or indecent – Fraser

3. When the expression advocates illegal drug use – Morse

4. Only in the context of school-sponsored, non-public forum student expression, when the censorship is viewpoint neutral and is based on a reasonable educational justification – Hazelwood

These court decisions make clear students in public schools do have significant First Amendment protections, even when working in school-sponsored student media. One federal court case helps illustrate that point.

Student journalists at Utica High School in Michigan prepared a news story and an editorial about a lawsuit filed by community members against the school district. A family who lived near the district’s school bus parking lot claimed they became ill from breathing the exhaust of school buses left idling for hours. Members of the student newspaper staff believed the lawsuit was one relevant to its readers, noting the parking lot was also near the high school athletic field and an elementary school playground. School officials refused to comment for the story and ultimately ordered the newspaper adviser not to allow students to cover the topic.

Student editor Katy Dean eventually sued her school for violating students’ First Amendment rights after she was unable to persuade officials to reconsider their decision. In the case Dean v. Utica Community Schools (E.D. Mich. 2004), the court ruled in favor of Dean and against the school’s censorship.

The court offered several justifications for its conclusion. First, it noted the newspaper had been operating as a designated public forum for student expression. As the newspaper adviser testified in court, for more than 20 years no school official had censored or reviewed the newspaper before publication, and the publication’s own policies gave content control to student editors. Thus, the court concluded limitations of the Hazelwood standard did not apply, even though the publication was school-sponsored.

Second, the court said even if the publication were subject to the Hazelwood censorship standard, the school could not meet it. It was not “educationally reasonable” to censor an accurate story about a lawsuit filed against the school district. In fact, the judge in the case concluded this was exactly the kind of substantive journalism the school should encourage students to engage in.

Finally, the court held even if the publication were subject to Hazelwood limitations and even if the censorship were considered educationally reasonable, the school’s actions were not “viewpoint neutral” as Hazelwood requires. Because the school’s motivation for censoring was clearly to silence a viewpoint with which it disagreed – that of the family who filed the lawsuit – the school’s actions could not stand.

The Dean decision is a wake-up call to administrators who censor simply because they fear news coverage will make the school look bad. The ruling emphasizes the First Amendment is alive and well in public schools.

Press freedom defined by state law

Beyond First Amendment protections, seven states have enacted statutes that provide even stronger protection for student journalists.

California ( Cal. Educ. Code Sec. 48907 )
Massachusetts ( Mass. Gen. Laws Ann. ch. 71, Section 8 )
Iowa ( Iowa Code Sec. 280.22 )
Colorado ( Colo. Rev. Stat. S ) ec. 22-1-120 )
Kansas ( Kan. Stat. Ann. Sections 72.1504 – 72.1506 )
Arkansas ( Ark. Stat. Ann. Secs. 6-18-1201 – 1204 )
Oregon ( Ore. Rev. Stat. sec. 336.477 )

In each of these states, laws require school officials to justify all acts of censorship under a standard based on the Supreme Court’s Tinker opinion. In addition, two states ( Pennsylvania and Washington ) have state regulations that may expand student rights.

Legal limitations on speech

Scholastic journalism education isn’t just about rights. It’s also about helping students understand their legal obligations and responsibilities. A quality journalism education emphasizes the importance of avoiding unprotected speech including libel, obscenity, invasion of privacy and copyright infringement. When students, teachers and school administrators understand these legal principles, everyone benefits. • Libel: publication of false statements of fact that damage a person’s reputation. Statements that can be proven true are not libelous. • Obscenity: explicit descriptions of graphic sexual or excretory activities that are not protected under the First Amendment; “four-letter words” or other vulgar or profane comments are not legally obscene. • Invasion of privacy: legal restrictions defined by state law that limit the ability of journalists to gather and publish certain private information about individuals. • Copyright infringement: using another’s original creative work without permission. This includes stories, photos, illustrations, music, etc. The law does allow some educational and information uses without permission when it falls within the category of “fair use.”

Access to information

In order for student journalists to cover their schools effectively, they must have adequate access to information. Administrators can play a key role by ensuring their staffs are familiar with state’s open records and open meetings laws and are prepared to provide student journalists with the same information to which any community member or journalist would be entitled.

• FERPA (Family Educational Rights and Privacy Act, 20 U.S. Code sec. 1232g): a federal law that regulates schools’ release of student education records. This law does not apply to information student journalists publish, but only to records school officials release that personally identify individual students.

Recommendations Administrators should: • Establish a school policy that designates student media as forums for student expression to provide the best learning. (The Student Press Law Center’s “ Model Guidelines for High School Student Media ” provide a good example.) Doing this allows students to dispel rumors and misinformation, offer solid facts and provide an outlet for comment, opinion and debate. Both the students on the publication staff and the school as a whole benefit. • Use definable terms (libel, copyright infringement, etc.) in school policies related to student media and student expression rather than vague, subjective words and phrases that will inevitably lead to confusion. Language to avoid includes: “offensive to good taste,” “inappropriate” or “material inconsistent with the shared values of a civilized social order.” • Encourage student media staffs to develop clear policies to help guide them in making journalistically strong, ethically sound decisions. • Provide a clear job description for media advisers and recognize their role is to guide and teach, not to determine content or censor. • Refrain from prior review of student media content or from requesting it of another school staff member. The practice negates the role of the media adviser, results in direct censorship of content and encourages self-censorship by students. • Maintain open lines of communication between school officials, advisers and student journalists. Administrators will not be happy with every decision journalists make, and sometimes students will make mistakes. But as in any classroom or extracurricular environment, those mistakes can create the greatest opportunity for learning and growth. • Keep abreast of changes in student press law.

Scholastic media law resources • Student Press Law Center : This national organization serves as a legal advocate for student journalists and their advisers and produces a wide variety of information and educational materials on student press law. Students and advisers can get free assistance from media lawyers and help with developing policies and classroom resources. • Journalism Education Association : The nation’s largest association of scholastic journalism educators and secondary school media advisers has adopted strong policy statements endorsing student freedom of expression. • JEA Scholastic Press Rights Commission : This organization of journalism teachers seeks to educate about the role of free and journalistically responsible student news media in 21st-century learning and civic engagement.

See also: Journalism ethics at center stage School boards and student media The value of using social media in journalism Internet access and safety Differences between law and ethics Yearbook ethical guidelines for student media Online ethical guidelines for student media Visual ethical guidelines for student media Definitions of prior review, restraint and forums Which type of forum best serves your students and community Importance of open forum status JEA Adviser Code of Ethics Internet freedom of expression Why avoiding prior review is educationally sound First Amendment Press Freedom questions

• Quill and Scroll Society

• Journalism Education Association

• JEA Scholastic Press Rights Commission

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91 First Amendment Essay Topic Ideas & Examples

🏆 best first amendment topic ideas & essay examples, 👍 good essay topics on first amendment, 🥇 interesting topics to write about first amendment, ❓ first amendment essay questions.

Cyberbullying and the First Amendment Under the geographical approach, the defendant can argue that since the event in question occurs online and outside of school property, it is covered by the First Amendment and the school has “no authority to […]
First Amendment: Religion and Education The right to education is protected by human rights legislation guaranteeing to adapt education to the requirements of individuals and communities that are evolving and to the needs of students in their varied socio-cultural contexts.
Vaccination in the Context of the First Amendment The purpose of this paper is to review the dilemma in the context of the First Amendment and the free exercise of religion.
The First Amendment: Free Speech and Education However, this is the case only “unless school authorities have reason to believe that such expression will substantially interfere with the work of the school or impinge upon the rights of other students”.
Pornography or Obscenity and the First Amendment Amendment 1 of the US Constitution states that the “Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, […]
The First Amendment – Religion and Expression In the ruling of Skokie case, the Supreme Court of the United States ruled in favor of the residents of Skokie, although it still allowed the planned marching by the NSP to go no.in this […]
Free Speech in the First Amendment The first amendment of the Constitution states, “Congress will 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 […]
Religious Establishment Clause of the First Amendment Therefore, based on the theoretical application of the Constitution, the chosen case violates the Religious Establishment Clause of the First Amendment to the U.S.
Violent Video Games and First Amendment Protection Violent games appear to be a legitimate type of media with its right for free expression; however, minors should also be protected from the violent and sexual content of video games because they lack media […]
First Amendment in the US Modern Justice System Also, the paper discusses the significance of the verdict passed by the Supreme Court in each case and their relevance or influence on the rights of American citizens today.
Does Title VII Conflict With the First Amendment The government is not justified to disallow religious expression at workplaces by the Establishment Clause of the First Amendment. Title VII statute and the First Amendment both provide protection for an employee’s religious rights.
Founding Fathers Religion: The First Amendment Role in the Church-State Separation As a result, a resolute transformation from the Puritan Fathers in 1639, who uphold the religion as a foundation of any society, to the Founding Fathers in 1787, who accepted freedom of religion as an […]
Journalism, the First Amendment and Egypt This essays suggests that the First Amendment freedom of the press clause has transcended its physical boundaries and now functions as a protective ideological bubble not only for American journalists but for journalists all over […]
First Amendment: Commercial and Political Free Speech However, the degree to which the First Amendment protects commercial speech is not the same as that for other forms of speech protected by the Amendment.
What the Founders Meant by the First Amendment? The first amendment was written over 200 years ago by the founders who wanted to protect both the State and religion from interfering in each others tasks.
Free Speech: First Amendment Obscenity is one of the exceptions, according to the US Miller Test, obscenity is a test used by Supreme Court to determine if an expression or a speech can be termed obscene and whether it […]
On the First Amendment to the U.S. Constitution The freedom that Americans experience comes at a price because there are conflicts and problems that arise from the interpretation and implementation of the First Amendment, however, many legal experts are saying that it is […]
The Free Exercise Thereof: Freedom of Religion in the First Amendment The Freedom of Religion clause in the First Amendment represents one of the few official documents on the planet that corroborates free will, specifically, the right to choose, in the arena of religion.
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First Amendment Rights In Schools Essay

As cited in California Education Code 48900 (1), “bullying” means any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act. Cyber bullying, to be specific, is bullying that takes place using electronic technology such as cell phones, computers, and tablets, as well as communication tools including social media sites, text messages, chat, and websites.

First Amendment :

Although the Supreme Court had previously held that students in public schools are entitled to some constitutional protection, 1 Footnote See, e.g. , W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ; Meyer v. Nebraska, 262 U.S. 390 (1923) ; Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) . as are minors generally, 2 Footnote In re Gault, 387 U.S. 1 (1967) . Children are subject to some restrictions that could not constitutionally be applied to adults. E.g. , Ginsberg v. New York, 390 U.S. 629 (1968) (upholding state law restricting access to certain material deemed “harmful to minors,” although not obscene as to adults). it established the controlling standard for assessing First Amendment rights in the school environment in Tinker v. Des Moines Independent Community School District . 3 Footnote 393 U.S. 503 (1969) . In that case, the Court articulated a need to balance students’ First Amendment protections with the goals and needs of educators and the community.

In Tinker , high school principals had banned students from wearing black armbands as a symbol of protest against the United States’ actions in Vietnam. 4 Footnote Id. at 504 Reversing the lower courts’ refusal to reinstate students who had been suspended for violating the ban, the Court set out a balancing test for applying the First Amendment in schools. 5 Footnote Id. at 514 . According to the Court, “ First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students,” and neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 6 Footnote Id. at 506 . Notwithstanding these protections, the Court affirmed the comprehensive authority of the states and of school officials, consistent with fundamental constitutional safeguards, “to prescribe and control conduct in the schools.” 7 Footnote Id. at 507 . On balance, therefore, school authorities may restrict expression to prevent disruption of school activities or discipline, 8 Footnote Id. but such restrictions must be justified by “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” 9 Footnote Id. at 509 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966) ). See also Papish v. Bd. of Curators, 410 U.S. 667 (1973) (state university could not expel a student for using “indecent speech” in campus newspaper); but cf. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (upholding two-day suspension, and withdrawal of privilege of speaking at graduation, for student who used sexual metaphor in speech given to high school assembly).

The Court reaffirmed Tinker in Healy v. James , finding no basis to believe that, “ First Amendment protections should apply with less force on college campuses than in the community at large.” 10 Footnote 408 U.S. 169 (1972) . In Healy , the Court held that students’ rights of association, implicit in the First Amendment , were violated when a public college denied a student group official recognition as a campus organization. 11 Footnote Id. at 180 . Denying recognition, the Court held, was impermissible if it was based on factors such as the student organization’s affiliation with the national Students for a Democratic Society, on disagreement with the organization’s philosophy, or on an unfounded fear of disruption. 12 Footnote Id. at 187–90 . The Court suggested that how courts strike the balance under the Tinker inquiry may differ depending on the students’ ages. The Court emphasized that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’” but also concluded that a college administration may require “that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law.” 13 Footnote Id. at 193 . Because a First Amendment right was in issue, the college had the burden to justify rejecting a request for recognition rather than the requesters to justify affirmatively their right to be recognized. Id. at 184 . See also Grayned v. City of Rockford, 408 U.S. 104 (1972) (upholding an anti-noise ordinance that forbade persons on grounds adjacent to a school to willfully make noise or to create any other diversion during school hours that “disturbs or tends to disturb” normal school activities).

In 1982, the Court faced a conflict between a school system’s obligation to inculcate community values in students and the free-speech rights of those students. In Board of Education v. Pico , the Court considered a case challenging a school board’s authority to remove certain books from high school and junior high school libraries. 14 Footnote Bd. of Educ. v. Pico, 457 U.S. 853 (1982) . The procedural posture of the case required the Court to assume that the books were removed because the school board disagreed with the books’ content for political reasons. 15 Footnote Id. at 872 . A plurality of the Court thought that students retained substantial free-speech protections and that among these was the right to receive information and ideas. 16 Footnote Id. at 866–67 . Although the plurality conceded that school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political,” it reasoned that a school board was constitutionally prohibited from removing library books in order to deny access to political ideas with which the board disagreed. 17 Footnote Id. at 862, 864–69, 870–72 . Justices Thurgood Marshall and John Paul Stevens joined Justice William Brennan’s opinion fully. Justice Harry Blackmun believed “that certain forms of state discrimination between ideas are improper” and agreed that the government “may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.” Id. at 878–79 (Blackmun, J., concurring in part and concurring in the judgment). Justice Byron White provided the fifth vote for reversal, and he would have avoided “a dissertation” on the First Amendment issue. Id. at 883 (White, J., concurring in the judgment). Instead, he voted to reverse the trial court’s grant of summary judgment based on an unresolved factual issue going to the reasons for the school board’s removal. Id. The four dissenters argued that the Constitution did not prevent the school board from expressing community values in this way regardless of its motivation. 18 Footnote Justice William Rehnquist wrote the principal dissent. Id. at 904 (Rehnquist, J., dissenting). See also id. at 885 (Burger, C.J., dissenting), 893 (Powell, J., dissenting), 921 (O’Connor, J., dissenting).

The Court struck a different balance between student freedom and educator authority in Hazelwood School District v. Kuhlmeier , 19 Footnote 484 U.S. 260 (1988) . in which it relied on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need be only “reasonably related to legitimate pedagogical concerns.” 20 Footnote Id. at 273 . The Court distinguished the facts of Kuhlmeier from Tinker , explaining that “[t]he question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker —-is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.” 21 Footnote Id. at 270–71 . The student newspaper at issue had been created by school officials as a part of the school curriculum, and served “as a supervised learning experience for journalism students.” 22 Footnote Id. at 270 . Because the newspaper was not a public forum, school officials could maintain editorial control so long as their actions were “reasonably related to legitimate pedagogical concerns.” 23 Footnote Id. at 273 . Thus, a principal’s decision to remove an article describing student pregnancy in a manner believed inappropriate for younger students, and another article on divorce critical of a named parent, were upheld. 24 Footnote Id. at 276 .

In Morse v. Frederick , 25 Footnote 551 U.S. 393 (2007) . the Court held that a school could punish a pupil for displaying a banner that said, “BONG HiTS 4 JESUS” at a school-sponsored event even absent evidence the banner caused substantial disruption. 26 Footnote Id. at 401 . The Court reasoned that schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,” 27 Footnote Id. at 397 . but indicated that it might have reached a different result if the banner had addressed the issue of “the criminalization of drug use or possession.” 28 Footnote Id. at 403 . In his concurrence, Justice Samuel Alito commented that the Court’s opinion “provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue.” 29 Footnote Id. at 422 .

While the Kuhlmeier and Morse cases focused on applying Tinker to on-campus speech, the Court addressed Tinker 's application to off-campus speech in its 2021 Mahanoy Area School District v. B.L. decision. 30 Footnote No. 20-255 (U.S. June 23, 2021) . In Mahanoy , the Court held that while public schools may have a special interest in some off-campus student speech, there are several features of off-campus speech that diminish “the unique educational characteristics that might call for the special First Amendment leeway” to regulate speech that Tinker provided. 31 Footnote Id. at 5–7 . The Court identified three distinguishing characteristics of off-campus speech that the Court reasoned made the Tinker standards less applicable. 32 Footnote Id. at 7 . First, off-campus speech, in some circumstances, should fall within the zone of parental, rather than school officials', responsibility. 33 Footnote Id. Second, the Court reasoned that allowing schools to regulate off-campus speech would provide an opportunity to regulate student speech 24 hours a day, which may, in effect, chill students’ protected speech. 34 Footnote Id. Third, the Court emphasized that while a school does have authority to regulate speech that interrupts the school’s work, 35 Footnote The Court also reiterated that, pursuant to Tinker , schools have a “special interest in regulating speech that ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others.’” Id. schools also have an interest in protecting students’ unpopular expressions, as America’s public schools are “the nurseries of democracy.” 36 Footnote Id. Although the Court recognized that some off-campus speech—-such as severe bullying, threats, or participation in online school activities—may require school regulation, it was hesitant to establish any clear general rules about what constitutes off-campus speech. 37 Footnote Id. at 5–6 . In light of these considerations, the Court held that a school could not regulate a student’s social media posts that criticized the school because the circumstances of the speech—the fact that the posts were made at an off-campus convenience store on a personal cellphone to a limited group of people and did not name the specific school or school authorities—diminished the school’s interest in regulation. 38 Footnote Id. at 7–8 .

The line of cases from Tinker to Mahanoy address the First Amendment rights of school and university students. Teachers and other employees of schools also have rights, but those rights are generally analyzed under rules that apply to the government as an employer. 39 Footnote See, e.g. , Keyishian v. Bd. of Regents, 385 U.S., 589 (1967) . See also Amdt1.7.9.1 Loyalty Oaths, Amdt1.7.9.2 Political Activities and Government Employees, Amdt1.7.9.3 Honoraria and Government Employees, and Amdt1.7.9.4 Pickering Balancing Test for Government Employee Speech.

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The Battle Over College Speech Will Outlive the Encampments

For the first time since the Vietnam War, university demonstrations have led to a rethinking of who sets the terms for language in academia.

A pro-Palestinian protest on Columbia University’s campus this spring. Credit... Mark Peterson/Redux

Supported by

By Emily Bazelon and Charles Homans

Emily Bazelon is a staff writer for the magazine who also teaches at Yale Law School. Charles Homans covers politics for The Times. He visited the Columbia campus repeatedly during the demonstrations, counter-demonstrations and police actions in April.

Published May 29, 2024 Updated May 31, 2024

Early on the afternoon of Nov. 10, Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University, was on his way into a meeting in Low Library, the domed neoclassical building at the center of campus, when an administrator pulled him aside. The school, the administrator said, was about to announce the suspensions of the campus chapters of the organizations Students for Justice in Palestine and Jewish Voice for Peace, an allied anti-Zionist organization — a move that alarmed Jaffer given the fraught politics of the moment.

Listen to this article, read by Gabra Zackman

The day after Hamas’s brazen Oct. 7 attack on military and civilian targets in Israel, the S.J.P. and J.V.P. chapters co-signed an open letter declaring “full solidarity with Palestinian resistance.” The letter described the attacks as “an unprecedented historic moment for the Palestinians of Gaza” and a “counteroffensive against their settler-colonial oppressor.” It would be tantamount to “asking for quiet submission to systemic violence” for anyone to call for peace now, after years of Israeli violence and military campaigns against Palestinians. The groups issued a list of demands to the university — divestment from companies doing business with the Israeli government, the end of Columbia’s affiliation with Tel Aviv University and a recognition of Palestinian “existence and humanity” — and announced a demonstration on Oct. 12 on the steps of Low Library. They signed off: “See you Thursday.”

The Oct. 12 demonstration appeared to be in violation of campus rules, which required student groups to give 10 days’ notice for gatherings in public spaces, but Columbia had not been enforcing such requirements amid the emotional responses to the Hamas attacks and Israel’s retaliatory bombing in the Gaza Strip. “We got some pushback from the university,” recalled Cameron Jones, an organizer of the J.V.P. chapter, “but not insane pushback.”

As the sit-ins, teach-ins and die-ins continued, however, that began to change. Pro-Israel groups held counterdemonstrations, and tensions built on Columbia’s small, enclosed central campus. “In the past, demonstrations were basically students protesting against the establishment, and that was, you know, unidirectional and fairly straightforward,” the president of Columbia, Minouche Shafik, said in late May, in her first interview since December. “In this crisis,” she went on, “students are opposed to other students, faculty opposed to other faculty. And those internal dynamics and tensions have made this much more difficult than past episodes.” Outside Columbia’s library, several Israeli students were physically attacked after they confronted another student tearing down posters of Israelis held hostage by Hamas. Students wearing hijabs and kaffiyehs reported being called “Jew killers” and terrorists.

By Oct. 25, when S.J.P. and J.V.P. staged a walkout of college classes, “our relationship with the administration was really crumbling,” Jones recalled. Two days later, Israel’s invasion of Gaza began. On the night of Nov. 8, with another demonstration planned for the next day on the steps outside Low, a faculty adviser told the organizers that they were out of compliance with school rules and asked them to postpone the event. They did not , and the university suspended them.

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Gov. Gavin Newsom wants heavier restrictions on smartphones in California classrooms

California Gov. Gavin Newsom said he wants to impose heavier limits on kids using smartphones in schools, citing U.S. Surgeon General Vivek Murthy’s recent call to protect young people from the potential mental health harms of social media.

On Monday, Murthy published a New York Times opinion piece urging Congress to require a tobacco-style warning label on social media platforms to “remind parents and adolescents that social media has not been proved safe.”

In a statement to NBC News, Newsom echoed the surgeon general’s assertion that “social media is harming the mental health of our youth.” He cited a bill that he passed in 2019 that gave school districts in California the authority to limit or ban smartphone use during the school day, barring special circumstances and emergencies.

“Building on legislation I signed in 2019, I look forward to working with the Legislature to restrict the use of smartphones during the school day,” Newsom said. “When children and teens are in school, they should be focused on their studies — not their screens.”

The news was first reported by POLITICO .

Newsom’s office did not expand on what kind of restrictions he is planning to implement, but said the administration is looking at several proposals moving forward in the Legislature this year.

The governor’s statement comes the same day that Los Angeles Unified School District, the second-largest school district in the country with more than 420,000 students, voted to ban cellphone and social media use in its schools. The resolution calls on the district to create a policy to be implemented in January next year, a spokesperson for the district confirmed.

In 2022, Newsom also signed a controversial bill that implemented some of the strictest privacy requirements for children in the country — requiring businesses that “develop and provide online services, products, or features that children are likely to access” to comply with specific safeguards protecting the data and privacy of users under 18.

The California Age-Appropriate Design Code Act, which was slated to go into effect next month, was blocked by a federal judge last year after tech industry group NetChoice sued on the basis of the law allegedly violating the First Amendment. California Attorney General Rob Bonta has appealed the preliminary injunction as the lawsuit remains ongoing.

California is among a slew of states that in recent years have looked toward legislating restrictions on smartphone use in classrooms, as parents and teachers across the country express growing concern about distractions and potential harms posed by the devices.

Indiana passed a law in March requiring schools to adopt policies restricting cellphone use during instructional time, while Tennessee and Kansas failed to advance similar bills in recent months. Meanwhile, Oklahoma , Vermont and Virginia also introduced new legislation this year aimed at keeping phones out of schools.

Last year, Florida became the first in the nation to outright ban the use of cellphones during class time and to block access to social media on district Wi-Fi.

Even without mandates from the state or federal level, schools in dozens of states have already spent millions on sealed fabric pouches meant to lock up students’ phones during class.

In recent years, a growing body of research has sought to understand the impact of smartphones and screen time on young people, with many studies finding correlations to harmful behavioral and psychological effects. Last fall, a report from Common Sense Media found that children and teenagers get hundreds — or, for some, thousands — of phone notifications a day, most of them being social media alerts.

In his opinion essay Monday, Murthy wrote that he and his wife are already worrying about how they’ll approach social media use for their two young children.

“There is no seatbelt for parents to click, no helmet to snap in place, no assurance that trusted experts have investigated and ensured that these platforms are safe for our kids,” Murthy wrote. “There are just parents and their children, trying to figure it out on their own, pitted against some of the best product engineers and most well-resourced companies in the world.”

Angela Yang is a culture and trends reporter for NBC News.

IMAGES

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COMMENTS

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The First Amendment and Public Schools. 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.
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It violates the rights of the hearer as well as those of the speaker." (Douglas) Evidence of such a phenomenon is shown in a survey conducted by the Foundation for Individual Rights in Education, stating that forty-two percent of students are aware that the First Amendment protects hate speech, yet another forty-eight percent of students ...
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The Supreme Court ruled that the armbands were a form of symbolic speech, which is protected by the First Amendment, and therefore the school had violated the students' First Amendment rights. The silent protest had not interfered with the school's ability to operate normally, and therefore the school district's restriction of the student ...
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papers) and speech that promotes illegal drug use or criminal activity. 3 Is protest a form of protected student speech? Yes. Protest is a recognized form of protect-ed student speech. In Tinker, the student speech/expression in question involved students wearing black arm bands in protest of the
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July 2007 1. Download a .pdf of this document. As a legal matter, it can be extremely difficult to determine where faculty members' rights under academic freedom and the First Amendment begin and end. It can also be difficult to explain the distinction between "academic freedom" and "free speech rights under the First Amendment"—two ...
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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. —First Amendment, U.S. Constitution. Is bringing religious symbols into ...
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Arroyo 1 Amanda Arroyo 5 June 2020 Are Students Protected by the First Amendment? The first amendment for students is that students can speak, write articles, assemble to form groups and even petition school officials on issues. The U.S. Supreme Court has said that students "do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate."
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The court held that the school district violated the student's first amendment rights by disciplining her for creating the profile (J. S. v. Blue Mountain School District, 2009). ... Speech that causes a "substantial disruption" to the educational environment is not protected by the first amendment, and court records indicate that the ...
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journalists are within their rights as protected by the First Amendment. Choose one side of the classroom and direct students who support the student journalists to stand on that side. Students who support the action of the administration should stand on the opposite side. Students may be asked to explain or defend their reasoning.
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The First Amendment in Schools

Table of Contents

Introduction: Free Speech, Public Education, and Democracy

The First Amendment and Public Schools

How Big a Problem Is Censorship?

Roles and Responsibilities: Promoting First Amendment Values at School

Censorship Policies

National Education Association (NEA)

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First Amendment – Freedom of Speech

1735 Truth Is A Defense Against Libel Charge

1787 Federalist Papers’ Publication Starts

1791 First Amendment Is Ratified

1798 Alien And Sedition Acts Signed Into Law

1836 Efforts To Stifle Debate About Slavery Unsuccessful

1859 ‘On Liberty’ Is Published

1864 Lincoln Orders Two Newspapers Shut

1873 Circulation Of Birth Control Information Outlawed

1917 Congress Passes Espionage Act Of 1917

1918 Sedition Act Of 1918 Punishes Critics Of WWI

1919 ‘Clear And Present Danger’ Exception Established

1919 ‘Marketplace Of Ideas’ Concept Defined

1925 Court: First Amendment Applies To States’ Laws

1926 Mencken Arrested For ‘Indecent Literature’

1927 Criminal Syndicalism Law Constitutional

1931 Court: Symbolic Expression Of Ideas Also Protected

1931 Prior Restraint Ruled Unconstitutional

1937 Court: First Amendment Protects ‘Peaceable Assembly’

1940 Ban On Religious Solicitation Struck Down

1940 Flag Salute Requirement Is Upheld

1942 ‘Fighting Words’ Exception Established

1943 Court: Required Flag Salute Violates First Amendment

1947 Hatch Act Upheld; Dissent Says It Violates 17th Amendment

1949 Scope Of ‘Fighting Words’ Doctrine Limited

1952 Justices Uphold Group Libel Law

1957 Obscenity Exception To First Amendment Established

1958 Court Protects ‘Free Association’ In NAACP Case

1959 No Protection From Congressional Inquiry

1961 Symbolic Speech Of Civil Rights Protesters Protected

1964 Court Establishes ‘Actual Malice’ Standard

1966 Loyalty Oath Is Struck Down

1966 Smith Act Is Found Constitutional

1968 Limits Placed On Symbolic Speech Right

1968 Teacher’s Free Speech Right Upheld

1969 Students’ Right To Symbolic Speech Upheld

1969 Private Ownership Of Obscene Material Protected

1969 Advocacy Of Violence Is Protected Speech Except In Rare Circumstances

1971 Antiwar Expression Is Ruled Protected Speech

1971 Newspapers Win Pentagon Papers Case

1972 Court: No Reporter’s Privilege Before Grand Juries

1973 Court: States Can Regulate Obscene Exhibits

1973 Definition Of Obscenity Is Clarified

1976 Money Spent In Political Campaigns Considered Speech

1976 Justices Protect Commercial Speech

1977 Court Allows Publication Of Juvenile’s Identity

1978 Nazis Permitted To March In Skokie, Ill.

1978 FCC Can Regulate Indecent Speech

1980 Court Establishes Commercial Speech Test

1982 School Board Cannot Ban Library Books

1982 Justices Rule Child Porn Not Protected

1983 Public Employees’ Free Speech Right Defined

1985 Anti-Pornography Law Is Struck Down

1986 Court: Student’s Lewd Speech Not Protected

1988 Court Allows Censorship Of School Publications

1989 Court: Flag Burning Is Protected Symbolic Speech

1990 Flag Protection Act Ruled Unconstitutional

1991 Media Coverage Limited In Gulf War

1991 Son Of Sam Law Is Struck Down

1992 Court Strikes Down Hate Crime Law

1993 Justices Allow Tougher Hate Crime Penalties

1994 Justices Uphold Buffer Zones At Abortion Clinics

1995 Communications Decency Act Passed

1996 Child Pornography Prevention Act Passed