Slide presentation for student journalists on Supreme Court case law and California protections for student free speech.

1. Law of the student
press, Part 2
Beatrice Motamedi
Newsroom by the Bay
Summer 2012
@2012 by Beatrice Motamedi
Students rallying outside the Supreme Court in Washington, D.C., in March
2007 before arguments in the case of Morse v. Frederick. Photo by
Newseum.org/Fair Use exemption
Friday, June 22, 12

2. First, a quiz (send group answer to j-conf)
• You are a dean of students, and at the all-school meeting, the student body
president, a senior and a male, begins to speak in a way that is sexually
suggestive (yet not openly obscene). There are freshmen in the audience.
There are girls in the audience. Would you permit it to continue? Why/why
not?
• You are a high school principal, and at a school rally, you see one of your
students unfurl a 14-foot banner that reads, “Bong Hits 4 Jesus.” Would you
allow it to remain up? Why/why not?
Friday, June 22, 12

3. Bethel: Can you say anything at ASM?
Cartoon by John DiCesare at http://www2.maxwell.syr.edu/plegal/
Lessons/Sdpr/sdpr3.html/Fair Use exemption
Friday, June 22, 12

4. Matt Fraser’s speech, all 1.5 minutes of it
• http://www.youtube.com/watch?v=eKiT5C3afhQ&feature=endscreen&NR=1
Friday, June 22, 12

5. Key holdings: Do you agree/disagree?
• there is a “marked distinction” between the political message of the armbands in
Tinker and the sexual content of speech in Bethel
• free speech must be balanced by society’s interest in teaching students the
boundaries of socially appropriate behavior
• the personal sensibilities of an audience can dictate restrictions on free speech
• schools are instruments of the state and can determine that lewd speech infringes
on the task of teaching civil conduct
Friday, June 22, 12

6. Key quotes
• “The undoubted freedom to advocate unpopular and controversial views in schools
and classrooms must be balanced against the society's countervailing interest in
teaching students the boundaries of socially appropriate behavior. Even the most
heated political discourse in a democratic society requires consideration for the
personal sensibilities of the other participants and audiences.”
• “It does not follow ... that, simply because the use of an offensive form of
expression may not be prohibited to adults making what the speaker considers a
political point, the same latitude must be permitted to children in a public school.”
• “The process of educating our youth for citizenship in public schools is not confined
to books, the curriculum, and the civics class; schools must teach by example the
shared values of a civilized social order. Consciously or otherwise, teachers -- and
indeed the older students -- demonstrate the appropriate form of civil discourse and
political expression by their conduct and deportment in and out of class.
Inescapably, like parents, they are role models.”
Friday, June 22, 12

7. So, answer the quiz:
• You are a dean of students, and at the all-school meeting, the student body
president, a senior and a male, begins to speak in a way that is sexually
suggestive (yet not openly obscene). There are freshmen in the audience.
There are girls in the audience. Would you permit it to continue? Why/why
not?
• You are the news editor of the Legend. Would you report on the incident?
Would you quote the speech? Run it in full?
• You are the opinions editor of the Legend. What kind of unsigned editorial
would you write re: the decision to prevent Matt Fraser from being a
graduation speaker?
Friday, June 22, 12

8. Morse v. Frederick: Does drug speech trump free
speech?
Photo by Clay Good at JuneauEmpire.com/
Fair Use exemption
Friday, June 22, 12

9. March 19, 2007 student rally at the Supreme Court
• ACLU video
Friday, June 22, 12

10. Key facts
• The students were outside as part of a school-sanctioned “class trip” to view
the passing of the Olympic torch as it passed in front of the Juneau high
school. Students were allowed to view the event from the street (off school
grounds).
• Frederick and his friends choose the far side of the street, across from school
(public space).
• Morse said she acted not because she disagreed (viewpoint discrimination)
but because Frederick was promoting an illegal act (drug use).
• Frederick said that his words were “just nonsense” for TV cameras and also
pointed out that there is no verb in “Bong Hits 4 Jesus.”
Friday, June 22, 12

11. Key holdings: Do you agree/disagree?
• How others interpret what you say and your motivation for what you say are two
different things.
• If one possible interpretation of your statement is that it advocates illegal drug use,
your free speech may be restricted by the school (the state), even if you had no
intention of advocating such illegal acts.
• The state’s interest in preventing illegal drug use is so important that it justifies an
exemption to the ban on viewpoint discrimination (i.e., restricting free speech
because you do not agree with it, for example, banning books on certain subjects,
or preventing students from talking about religion or sexual orientation).
• The war on drugs is a critical component of a school’s educational and civic
mission: “Deterring drug use by schoolchildren is an ‘important—indeed, perhaps
compelling’ interest .... Drug abuse can cause severe and permanent damage to the
health and well-being of young people.”
Friday, June 22, 12

12. Key quotes
• “At least two interpretations of the words on the banner demonstrate that the sign
advocated the use of illegal drugs. First, the phrase could be interpreted as an
imperative: ‘[Take] bong hits …’—a message equivalent, as Morse explained in her
declaration, to ‘smoke marijuana’ or ‘use an illegal drug.’ Alternatively, the phrase
could be viewed as celebrating drug use— ‘bong hits [are a good thing],’ or ‘[we
take] bong hits‘ — and we discern no meaningful distinction between celebrating
illegal drug use in the midst of fellow students and outright advocacy or promotion.”
• “Frederick’s ‘credible and uncontradicted explanation for the message—he just
wanted to get on television’ ... is a description of Frederick’s motive for displaying
the banner; it is not an interpretation of what the banner says.”
• “The question thus becomes whether a principal may, consistent with the First
Amendment, restrict student speech at a school event, when that speech is
reasonably viewed as promoting illegal drug use. We hold that she may.”
Friday, June 22, 12

13. So, answer the quiz:
• You are a high school principal, and at a school rally, you see one of your
students unfurl a 14-foot banner that reads, “Bong Hits 4 Glaucoma.” Medical
marijuana is legal in your state. Would you allow it to remain up? Why/why
not?
• What if the banner read, “Stop Doing Bong Hits”?
• What if the student is holding a banner reading “Bong Hits 4 Jesus” and is
standing in the parking lot of the drugstore across from school on a
Saturday?
• What if your student’s banner read “Fund Free Abortions for Students”?
Friday, June 22, 12

14. Three arguments against censorship and prior
review
• You could censor, but why would you? School mission, pedagogical
approach don’t support restricting debate, discussion, flow of ideas. And
viewpoint discrimination (I don’t like what you’re saying) is not supported by
the Supreme Court (Dean v. Utica).
• You could prior review, but why would you? It takes time, and the Pottery
Barn rule applies: Schools/administrators who review stories ahead of
publication become legally responsible for the content, whereas no school
that does not practice prior review has ever been successfully sued (Yeo v.
Lexington).
• Restricting speech often causes more controversy and public scrutiny than
allowing speech with which you do not agree (East Carolina University)
Friday, June 22, 12

15. Summing up, from the Student Press Law Center
Although official control of student journalists at many private schools remains a
legal and practical reality, students who find themselves victims of censorship and
prior restraint should not give in quietly. Ideally, control of the press should be as
repugnant to the school as it is to the student journalist. But where school
administrators cannot be convinced of the reasons for a strong, viable and editorially
independent campus press, some private school students may have reasonable
legal arguments available to them. Whether there is state action, a contract or other
enforceable promise, a state constitution, a statute such as California's "Leonard
Law" — or the power of persuasion — press freedom on private campuses can
realistically be fought for and won.
Friday, June 22, 12