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Speech,
Expression, and
Privacy
Freedom of Speech &
Expression
1943--Supreme Court states that
“freedom of press, freedom of speech,
freedom of religion are in preferred
position”
Expression--used interchangeably with
speech, which overlaps with press
Freedom of speech & press--not
absolutes
Clear and Present
Danger
Clear and present danger test--1950
Balance
1st--substantial interest in limiting the speech
I.e.--overthrowing gov’t
2nd--constitutes a “clear and present danger”
I.e.--yelling fire in a theater
Doesn’t fit the public schools
School is privilege rather than right
Can repress
Tinker v. Des Moines
Independent School
District, 1969.
Est. the “material and substantial
disruption” test
Students have rights
Can’t deny b/c it makes one feel “…
discomfort and unpleasantness…”
When & how restrain can occur is
determined on a case by case basis
Tinker v. Des Moines
Independent School
District, 1969.
1965--3 high school students wore
black armbands to school to protest
the Vietnam War
Didn’t disrupt school but motivated
by wish to avoid controversy
Other forms of speech were not
censored
Tinker v. Des Moines
Independent School
District, 1969.
Court Ruling
Denial of freedom of expression
must be justified by a reasonable
forecast of substantial disruption
Bethel School District
No. 403 v. Fraser, 1986.
Matthew Fraser--a high school
student gave a speech at a
school assembly containing
profanities and sexually explicit
language
Bethel School District
No. 403 v. Fraser, 1986.
Courts have to balance
right to advocate unpopular
and controversial issues
the school’s interest in
teaching socially appropriate
behavior
Bethel School District
No. 403 v. Fraser, 1986.
Fraser argued violated due
process b/c he didn’t know he
would be punished
Courts held that a school isn’t
expected to anticipate every
infraction
Mustn’t conflict with school’s
educational mission
Chandler v. McMinnville
School District, 1992.
3 categories of speech
Vulgar, lewd, obscene, etc--Fraser
Doesn’t have to be during school event
School-sponsored speech--Fraser &
Hazelwood
Inconsistent with ‘basic educational
mission’
Neither or these categories
Forecast substantial disruption
Chandler v. McMinnville
School District, 1992.
2 students protested the use of
replacement teachers by wearing buttons
School only tried to suppress buttons with
the word scab
Not lewd or obscene
Not viewed as bearing imprimatur of
school
Nothing indicating present or future
disruption
Student Appearance
1st, 9th,14th Amendments & Civil
Rights Act
Hair length
Supreme Court not important enough
Federal & State Courts don’t agree
School Uniforms
Canady v. Bossier
Parish School Board,
2001.
Qualifies as protected speech but it
is not absolute
3 Categories
Tinker--doesn’t interfere with school
Fraser--lewd, obscene
Hazelwood--related to legitimate school
pedagogical concerns
Canady v. Bossier
Parish School Board,
2001.
Weigh
Has to further government interests
Isn’t to suppress student expression
If the incidental restrictions of the 1st
Amendment are no more than
necessary to further gov’t interests
Forum Analysis
Conditions when gov’t can restrain
speech & expression
Traditional forums--used for public
discourse--(not lewd or imprimatur)
Limited public forum--regulation of
time, place & manner but not content.
Reserved, closed or nonpublic forum--
gov’t has power to preserve property
Lamb’s Chapel v.
Center Moriches Union
Free School District,
1993.
School that creates a limited public forum
cannot deny access to religious group.
May limit in non-public forum if viewpoint
neutral
Rule 7--all religions are treated equal
Child rearing & family values--not fair if all
others are allowed to espouse their views
Also doesn’t est. religion (Widmar) or
foster an unreasonable entanglement
(Lemon).
Student Publications
Public--gov’t cannot exercise prior
restraint
Schools--different standards
Can have prior restraint
Must have potential for disruption or
obscene
Have to make a decision
Student Newspapers
Forum analysis
Categories of Publications
School sponsored--can regulate
Underground--if allow then have limited
public forum--can only regulate time,
place, & manner
Religious--determined on whether
limited public forum or closed forum
Hazelwood School
District v. Kuhlmeier,
1988.
School officials deleted 2 pages
from a school newspaper.
Closed forum
bears the imprimatur of the school
Doesn’t meet the school’s standards
Violates other students’ rights
The Internet and
Free Speech
Can regulate use in school
Different legal questions arise when from
outside of school
limited public forum
can bypass school’s permission
Can’t regulate time, place & manner
Must demonstrate material & substantial
disruption
Beussink v. Woodland
R-IV School District,
1998.
Student created a homepage
criticizing the school.
District didn’t demonstrate any
foreseen disruption but was upset by
content
Court ruled his homepage was
constitutionally protected speech
Privacy:
Search & Seizure
4th Amendment--must have
probable cause to get a warrant
Cops
probable cause & a warrant
Schools
Reasonable suspicion--belief & some
facts not equal to proof
Must further school purpose
Reasonableness of
Searches
New Jersey v. T.L.O.
Justified at inception
Related to objectives of the
search and not excessively
intrusive
Special Needs & the
expansion of school
search powers
Special Needs
Vernonia v. Acton & Pottawatomie County
v. Earls
Decided by schools when may be harmful
Lower expectation of privacy
Procedures aren’t overly intrusive
May just be preventive
Canine Searches
Varies
Lockers ok
Cars ok b/c not accessible
Persons not ok
Need individual suspicion & can’t come
from the dog
Strip Searches
General Rule--the more intrusive the
search, then the more necessary it
is to show probable cause
Must constitute a danger to school
Searches for drugs, weapons, etc
have been upheld with reasonable
suspicion
Metal Detector
Searches