Contributions

The Dean Wormer Test: Good Faith as a Keystone of Student Speech First Amendment Jurisprudence

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.

Notes:

  1. 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?
  2. 393 U.S. 503 (1969).
  3. 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.”)
  4. 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.”)
  5. 478 U.S. 675 (1986).
  6. 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.”)
  7. Morse v. Fred­er­ick, 551 U.S. 393 (2007).
  8. B.H. ex rel. Hawk v. Eas­t­on Area Sch. Dist., 725 F.3d 293, 318–19 (3d Cir. 2013).
  9. Sonkowsky ex rel. Sonkowsky v. Board of Educ., 327 F.3d 675, 677 (8th Cir. 2003).
  10. Bragg v. Swan­son, 371 F. Supp. 2d 814, 819–20 (W.D.W. Va. 2005).
  11. Rop­er v. Sim­mons, 543 U.S. 551, 569 (2005).
  12. John­son v. Texas, 509 U.S. 350, 367 (1993).
  13. New York Times Co. v. Sul­li­van, 376 U.S. 254, 270 (1964).
  14. Edwin Chemerin­sky, Con­sti­tu­tion­al Law: Prin­ci­ples and Poli­cies, 1211 (5th Ed., 2015).
  15. 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).
  16. 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”).
  17. 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.”)
  18. 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).
  19. Fras­er, 478 U.S. at 683.
  20. 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.
  21. Brous­sard by Lord v. School Bd. of City of Nor­folk, 801 F. Supp. 1526 (E.D. Va. 1992).
  22. Morse, 551 U.S. at 405–06.
  23. 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”).
  24. 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.
  25. See Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465, 473 (6th Cir. 2000).
  26.  ‘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).
  27. F.C.C. v. Paci­fi­ca Found., 438 U.S. 726, 729 (1978).
  28. Christo­pher Fair­man, Fuck, Oh. St. Pub. L. Work­ing Paper No. 59 (March 2006), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896790.
  29. Miller v. Cal­i­for­nia, 413 U.S. 15, 36 (1973).
  30. 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).
  31. 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”).
  32. 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.”)
  33. See Ward v. Rock Against Racism, 491 U.S. 781 (1989) (uphold­ing city’s noise reg­u­la­tion as a per­mis­si­ble “man­ner” restric­tion on speech).
  34. 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).
  35. Richard Gar­nett, Andrew Kop­pel­man, First Amend­ment Sto­ries, 432 (2011).
  36. Fras­er, 478 U.S. at 677.
  37. New York Times v. Sul­li­van, 376 U.S. 254, 270–71 (1964).
  38. 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).
  39. See, e.g., Dar­i­ano v. Mor­gan Hill School Dis­trict, 745 F.3d 354 (9th Cir. 2014).
  40. See, e.g., A.M. ex rel. McAl­lum v. Cash, 585 F.3d 214 (5th Cir. 2009).
  41. See, e.g., Harp­er v. Poway Uni­fied School Dist., 445 F. 3d 1166 (9th Cir. 2006).
  42. 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).
  43. Morse v. Fred­er­ick, 551 U.S. 393 (2007).
  44. See, e.g., Bow­ers v. Hard­wick, 478 U.S. 186, 196–97 (1986) (wax­ing lyri­cal about West­ern civ­i­liza­tion).