by Alec Webley 1
There is, I suppose appropriately, something childish about the student speech cases to arise since Tinker v. Des Moines Community School District 2was handed down in 1968. In Tinker the ACLU chose its plaintiffs well: quiet, respectable John and Mary Beth engaged in a silent, unobtrusive protest on possibly the most political of political matters—the Vietnam War—only to be silenced by a dyspeptic school administration that made Dean Wormer 3look like Albus Dumbledore. 4The Tinkers, in short, acted like adults and the Supreme Court was ready for at least some purposes to treat them accordingly.
Subsequent plaintiffs have not pursued quite so elevated a discourse. The Court turned to school speech issues a second time in Bethel Sch. Dist. No. 403 v. Fraser, 5where the speech at issue was a mildly clever school election stump speech using a sexual metaphor. 6The latest case turned on the meaning—if there was any—of the legend “Bong Hits 4 Jesus” spraypainted on a bedsheet and hung out during a school trip. 7 The lower courts have been an even broader situs for childish folly: student speech issues have been presented by bracelets bearing the legend “I Heart Boobies,” 8a student who refused to take off a Green Bay Packers shirt when on a field trip to the Vikings’ training compound, 9and, my personal favorite, a student who refused to remove their Confederate-flag-emblazoned clothing while at school—because he owned almost no other clothes. 10
These plaintiffs help illustrate one of the less obvious premises behind the First Amendment: that those protected by it have the maturity to handle the nasty side-effects of freedom. One can see why the Court reached this conclusion about the sober and serious Tinkers just as one can see why the children to follow have not had quite their level of success. As “every parent knows,” the Court has said in another context, 11“[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” 12Indeed, the notion of a public debate that is “uninhibited, robust, and wide-open” loses something of its rhetorical appeal when applied to a population that doesn’t quite know what a public debate is. 13
Accordingly, the Court has applied conventional exceptions to First Amendment protection with gusto in the school context. There is now pretty sound consensus that primary and secondary schools, along with prisons “and other authoritarian environments,” 14have been carved into their own special constitutional category. In this category educators have three special doctrines by which to beat down challenges to content-based suppression of student speech. Two of the doctrines seem eminently sensible: schools are allowed to control classroom curriculum 15and ward off substantial disruption to the school environment. 16The third exception, drawn from Fraser and allowing the censorship of “lewd” speech, 17is not. The 2015 Seigenthaler First Amendment Moot Court Competition helped illustrate why.
The question on which the competition turned was whether or not student stickers reading “Screw Hate, Don’t Discriminate” were “lewd.” This question turned on the overdetermined reasoning of Fraser, where the Supreme Court upheld suppression of a vulgar student assembly speech in part because it occurred in a classroom-type setting (a kind of limited public forum) 18and in part because it contained “offensively lewd and indecent speech.” Its nose firmly held, the Court went on to declaim:
“Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. . . . Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions.” 19
Lewdness, to be clear, is not obscenity. Indeed, it has no coherent definition as far as anyone can tell. 20“Drugs suck” is lewd, 21but “Bong Hits for Jesus” is not. 22 “I ♥ Boobies” is in an unhappy quantum state, being both lewd and not lewd at the same time. 23Sexuality is often described as the touchstone for lewdness, 24except when it isn’t and “plain offensiveness” will do. 25Into this wild abyss came the competition problem-writers, who expected us to discuss at length whether the word “Screw” counts as a “lewd” word.
The semantic arguments seem more suited to a high school bathroom than a federal court. “Screw” is of course a synonym for certain meanings of “fuck” 26which is definitely a dirty word one can’t say on television, 27and that holds a special place in the law, 28but in the context of “hate” it is being used in a non-sexual context. Or is it? Surely the opprobrium of the word comes from its association with taboo sexual meanings? This is surely why obscenity regulation today is essentially limited to actual depictions of sexual acts, 29instances where we really do know it when we see it. 30 “Lewdness” is simply too vague and flabby a standard to apply, especially when the target audience has the uncanny ability to make almost anything in any context about sex.
Setting aside these language games, the most principled defense of the Fraser lewdness rule seems to me to be Justice Brennan’s, which characterizes lewdness regulation as regulation of the “manner” of the speech. 31The Court has long said that regulations of “time, place, and manner” of speech are constitutional; 32while “manner” usually means, for example, the volume of speech, 33Brennan’s justification in Fraser considers the term more metaphysically. Thus one would be allowed to say “Discrimination is Wrong,” but not “Screw Hate” because the content of the message is the same (deploring discrimination) but the means by which it is expressed is inappropriate—jarring to the ear in the same way as if it was yelled rather than declaimed softly.
But to characterize Fraser as applying to the “manner” of speech is to ignore the ways in which the opinion endorses content-based regulation of speech, and to a pernicious and unnecessary degree. Consider the Fraser case itself. The objectionable speech was given in an election for high school student body vice-president. It is customary at an election to make speeches that play to the prejudices and interests of the voters. What better speech to an adolescent electorate than one discussing sex? 34More to the point, given the total lack of influence a high school student body vice-president has on any issue of any significance whatever to anyone, what else could be said to recommend him? And the speech worked: Jeff Kuhlman was elected in a landslide. 35
In other words, by denying students the use of sexual metaphors of all sorts, one is not merely engaging in a content-neutral pruning of the students’ tree of language. Instead, students are being prevented the ability to effectively express their views in the out-of-classroom political debate over a pressing and important issue (discrimination against homosexuals and bisexuals), just as Fraser would have been disabled from using a winning electoral tactic in what was termed an “exercise in self-governance.” 36
This kind of regulation is, for want of a better term, content-biased; it may not expressly ban speech calling for an end to discrimination against gays but those who are in favor of the status quo (i.e. permitting discrimination against gays) are in effect shielded by language that could shake them out of their complacency or otherwise highlight the issue. After all, our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” requires that we permit “vehement, caustic, and sometimes unpleasantly sharp attacks” on our fellow citizens. 37
Worse, the “lewdness” test of Fraser however has the capacity to facilitate not only content-biased regulation, which occurs if lewd speech was banned by administrators uniformly, but content-based regulation when lewd speech is censured only when it is used to address particular sorts of subject matter. In our competition’s fact pattern, the stickers attracted little comment from school administrators until the mayor of the town was about to speak to a school assembly. Only when it appeared the stickers would embarrass administrators did the hammer of censorship come down, accompanied by pieties about disruption to the school environment. This is the problem with lewdness as a standard for speech suppression: when sex is ubiquitous in teenage discourse, regulation of speech must necessarily be discretionary and therefore runs the risk of transforming into a species of content-based censorship, much as any overbroad speech regulation has the potential to do. 38
Finally the “lewdness” doctrine fails the most important test of overbreadth: it does no work to achieve the legitimate aims of speech regulation in school. Requiring schools to show “actual disruption” or inconsistency with the school’s curriculum would not stop schools from banning truly disruptive, naughty speech. The case law abounds with tricky situations where content-biased regulation is both appropriate and upheld by the courts: when students are about to engage in a race riot over t-shirts with pictures of the American flag, 39or the Confederate flag, 40 or when language of a certain kind is being used in a campaign of harassment. 41The principal difference between the Court’s other tests for student speech and the “lewdness” test is that the school administration must show, in essence, a good-faith reason for shutting down student speech. Requiring this kind of showing would not merely be good for the First Amendment; it may well be good for the school.
Consider that while “screw hate” may have been an effective means of conveying a slogan, it carries a number of other implications that are unfortunate, and probably undesirable in adult discourse: the implication that those who disagree with us are hateful; a preference for making points with vulgarity rather than rational argument; a desire to create a binary choice in a debate over a nuanced local ordinance. Chief Justice Burger was surely right to claim, as he did in his opinion in Fraser, that “the fundamental values necessary to the maintenance of a democratic political system disfavor the use of terms of debate highly offensive or highly threatening to others. …[t]he inculcation of these values is truly the work of the schools.” 42
But merely suspending a lewd student speaker, or here punishing students for wearing stickers to a political event with the mayor, is hardly doing “the work of the schools” as modern education understands the term. There was no evidence in Fraser nor in our case that the school was at all interested in providing an integrated educational program that taught rhetoric and ways to deliberate productively with one’s fellow citizens. If the school had developed such a program, then punishing “lewd” or “offensive” speech would come to resemble giving a bad paper a bad grade. But the school would have done its homework, and given due concern and regard for its role as an educational institution rather than viewing student speech as a distraction or disruption from its work.
I have little doubt that at some point in the future the Court will turn once again to the student speech arena (if only because its decision in the latest iteration in this series, Morse v. Frederick, was so limited and conditional). 43When it does so, the time may be ripe to begin reconsidering and simplifying its doctrines. If it can’t, at least it ought to agree that the “lewd speech” doctrine should join other pearl-clutching judicial artifacts of the mid-eighties 44and make way for analytic approaches that properly recognize the unique obligation of the schools to take their educational programs seriously if they intend to use their unique status as a school to suppress student speech.
- This Contribution, reflects my experience at the 2015 Seigenthaler First Amendment Moot Court Competition at Vanderbilt University. The case involved a fifteen-year-old, K.E., who wanted to show her support for a local initiative that would have outlawed workplace discrimination on the basis of sexual orientation. She and some friends decided to print large, rainbow stickers reading “Screw Hate, Don’t Discriminate” and wore them on their shirts. A group of religious students at the school (and their parents) took umbrage at the stickers, though there were no physical altercations. Eventually the principal elected to ban the stickers, citing their disruptive effect on the educational environment and the “crude” nature of the slogans themselves. K.E. sued under 42 U.S.C. § 1983, claiming violation of her First Amendment right to free speech. The question presented was: Does a school district violate the First Amendment when they ban stickers reading “Screw Hate, Don’t Discriminate,” and if so, how? ↩
- 393 U.S. 503 (1969). ↩
- Animal House (Universal Pictures 1978). See also Dean Wormer Quotes, Internet Movie Database (Feb. 23, 2016), http://www.imdb.com/character/ch0010141/quotes (“The time has come for someone to put his foot down. And that foot is me.”) ↩
- J.K. Rowling, Harry Potter and the Order of the Phoenix (1995) (“By all means continue destroying my possessions; I daresay I have too many.”) ↩
- 478 U.S. 675 (1986). ↩
- Id. at 687 (Brennan, J., dissenting) (“I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most . . . of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds. Jeff is a man who will go to the very end — even the climax, for each and every one of you.”) ↩
- Morse v. Frederick, 551 U.S. 393 (2007). ↩
- B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 318-19 (3d Cir. 2013). ↩
- Sonkowsky ex rel. Sonkowsky v. Board of Educ., 327 F.3d 675, 677 (8th Cir. 2003). ↩
- Bragg v. Swanson, 371 F. Supp. 2d 814, 819-20 (W.D.W. Va. 2005). ↩
- Roper v. Simmons, 543 U.S. 551, 569 (2005). ↩
- Johnson v. Texas, 509 U.S. 350, 367 (1993). ↩
- New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). ↩
- Edwin Chemerinsky, Constitutional Law: Principles and Policies, 1211 (5th Ed., 2015). ↩
- See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (upholding restrictions on student newspaper because the newspaper was part of the school’s journalism class). ↩
- See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (implicitly allowing schools to suppress speech that presents a “substantial disruption of…school activities”). ↩
- See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) (“The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy.”) ↩
- Morse v. Frederick, 551 U.S. 393, 405 (2007) (explaining Fraser as establishing that the location of the speech was at least partially determinative of the limited First Amendment protection accorded to it). ↩
- Fraser, 478 U.S. at 683. ↩
- The whole field is rife with question-begging. To say “plainly lewd” speech “offends for the same reason obscenity offends” Easton, 725 F.3d at 319 (quoting Fraser, 478 U.S. at 685) doesn’t get us very far; there is a circuit split on whether “lewd” speech is simply speech “inconsistent with the basic educational mission” of a school (whatever that is), Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465, 473 (6th Cir. 2000), or whether it is speech that is itself harmful to minors because of its sexual content, Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 328 (2d Cir. 2006), though once again one has to ask whether sixteen-year-olds being exposed to the word “fuck” in school would really start bleeding profusely from the ears. ↩
- Broussard by Lord v. School Bd. of City of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992). ↩
- Morse, 551 U.S. at 405-06. ↩
- Contrast Easton, 725 F.3d at 320 (rejecting a ban on “I © Boobies” bracelets because in part these were “political speech”) with K.J. v. Sauk Prairie Sch. Dist., No. 11-cv-622-bbc, 2012 U.S. Dist. LEXIS 187689, at *19–20 (W.D. Wis. Feb. 6, 2012) (while “I © Boobies” bracelets “promote a worthy cause, that does not make their slogan innocuous”). ↩
- See Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 328 (2d Cir. 2006), though once again one has to ask whether sixteen-year-olds being exposed to the word “fuck” in school would really start bleeding profusely from the ears. ↩
- See Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465, 473 (6th Cir. 2000). ↩
- ‘Screw’ can have either a lewd sexual connotation (“usually vulgar; copulate”) or an indecent and highly offensive vulgar meaning (“often used as a generalized curse”). Screw Definition, Merriam-Webster.com, http://www.merriam-webster.com/ dictionary/screw (last visited Jan. 10, 2015). ↩
- F.C.C. v. Pacifica Found., 438 U.S. 726, 729 (1978). ↩
- Christopher Fairman, Fuck, Oh. St. Pub. L. Working Paper No. 59 (March 2006), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896790. ↩
- Miller v. California, 413 U.S. 15, 36 (1973). ↩
- Jacobellis v. Ohio, 378 U.S. 184, 197 (1966) (Stewart J., dissenting). The Stewart standard seems distinctly unsatisfactory for schools, given that Stewart, despite decades of experience deciding obscenity cases involving pornography, only “saw it” “just once, off the coast of Algiers.” Laurence Tribe & Joshua Matz, Uncertain Justice 121 (2014). ↩
- See Hazelwood, 484 U.S. at 286 n. 2 (Brennan, J., dissenting) (stating that Fraser is limited to “the appropriateness of the manner in which the message is conveyed, not of the message’s content”); see also Newsom ex rel. Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 256 (4th Cir. 2003) (“When speech in school falls within the lewd, vulgar, and plainly offensive rubric, it can be said that Fraser limits the form and manner of speech, but does not address the content of the message.”); Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465, 473 (6th Cir. 2000) (Gilman, J., dissenting) (noting that the terms “vulgar” and “offensive” in Fraser “refer to words and phrases that are themselves coarse and crude, regardless of whether one disagrees with the overall message that the speaker is trying to convey”). ↩
- See, e.g., Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 771 (1976) (“We have often approved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.”) ↩
- See Ward v. Rock Against Racism, 491 U.S. 781 (1989) (upholding city’s noise regulation as a permissible “manner” restriction on speech). ↩
- And perhaps not just adolescents. See Cory Scherer & Brad Sagarin, Indecent influence: the positive effects of obscenity on persuasion, 1 Social Influence 138, 139 (2006) (finding the judicious use of swearing in a controlled trial made the speaker somewhat more persuasive). ↩
- Richard Garnett, Andrew Koppelman, First Amendment Stories, 432 (2011). ↩
- Fraser, 478 U.S. at 677. ↩
- New York Times v. Sullivan, 376 U.S. 254, 270-71 (1964). ↩
- See, e.g., Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (discussing the overbreadth doctrine with reference to an airport regulation that literally banned “all First Amendment activity” in Los Angeles International Airport). ↩
- See, e.g., Dariano v. Morgan Hill School District, 745 F.3d 354 (9th Cir. 2014). ↩
- See, e.g., A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009). ↩
- See, e.g., Harper v. Poway Unified School Dist., 445 F. 3d 1166 (9th Cir. 2006). ↩
- Fraser, 478 U.S. at 683; see also Amy Gutmann, Democratic Education 75-83 (1987) (discussing the positive effects of educating for civil political discourse). ↩
- Morse v. Frederick, 551 U.S. 393 (2007). ↩
- See, e.g., Bowers v. Hardwick, 478 U.S. 186, 196-97 (1986) (waxing lyrical about Western civilization). ↩