The First AmendmentThe First Amendment

““Congress shall make no Congress shall make no law respecting an law respecting an establishment of establishment of religion, or prohibiting religion, or prohibiting the free exercise the free exercise thereof; or abridging thereof; or abridging the freedom of speech, the freedom of speech, or of the press; or the or of the press; or the right of the people right of the people peaceably to assemble, peaceably to assemble, and to petition the and to petition the government for a government for a redress of grievances.”redress of grievances.”

First PrinciplesFirst Principles The First Amendment affirms the freedom

of the individual. Free expression is the foundation — the

cornerstone — of democracy. The First Amendment tells the government

to keep its “hands off” our religion, our ideas, our ability to express ourselves.

Other people have rights, too. When rights collide, government must

balance them. The First Amendment helps us make

choices.

The Tinker StandardThe Tinker StandardTinker v. Des Moines Independent School Tinker v. Des Moines Independent School

Dist. (1969)Dist. (1969)

Student speech Student speech cannot be censored cannot be censored as long as it does as long as it does not “materially not “materially disrupt class work disrupt class work or involve or involve substantial substantial disorder or disorder or invasion of the invasion of the rights of others.”rights of others.”

The Fraser StandardThe Fraser StandardBethel School District No. 403 v. Fraser (1986)Bethel School District No. 403 v. Fraser (1986)

Because school Because school officials have an officials have an “interest in teaching “interest in teaching students the students the boundaries of socially boundaries of socially appropriate behavior,” appropriate behavior,” they can censor they can censor student speech that is student speech that is vulgar or indecent, vulgar or indecent, even if it does not even if it does not cause a “material or cause a “material or substantial substantial disruption.”disruption.”

The Hazelwood StandardThe Hazelwood StandardHazelwood School District v. Kuhlmeier (1988)Hazelwood School District v. Kuhlmeier (1988)

Censorship of Censorship of school- sponsored school- sponsored student expression student expression is permissible when is permissible when school officials can school officials can show that it is show that it is “reasonably “reasonably related to related to legitimate legitimate pedagogical pedagogical concerns.”concerns.”

How Do the Courts Decide?How Do the Courts Decide?

The courts are divided on several important legal questions, including:

o whether school officials have any legal authority to regulate student online expression created off-campus;

o whether and under what standard school officials can regulate off-campus student speech that is distributed at school either by the student who created it or other students;

o whether school officials have more authority to regulate student online speech that is created off-campus but aimed directly at the school audience.

Three Types of Student Web Three Types of Student Web sitessites

• Sites that are offensive, obnoxious Sites that are offensive, obnoxious and insulting.and insulting.

• Sites that are offensive, obnoxious Sites that are offensive, obnoxious and insulting, and also contain some and insulting, and also contain some sort of veiled threat of violence or of sort of veiled threat of violence or of destruction of property.destruction of property.

• Sites that contain an outright blatant Sites that contain an outright blatant threat.threat.

How Would You Decide How Would You Decide The Case?The Case?

And what would your And what would your reasoning be?reasoning be?

Key Questions to ConsiderKey Questions to Consider

o Is the student speech school-sponsored? If yes, then Hazelwood applies and great deference is given to school officials.

o Is the student speech vulgar, lewd or plainly offensive? If so, a court might apply Fraser.

o If the speech is not threatening, school-sponsored, or lewd, a court will apply Tinker and ask whether school officials can reasonably forecast that the student expression will create a substantial disruption of school activities or invade the rights of others.

The “Three R’s” of the The “Three R’s” of the First AmendmentFirst Amendment

• Rights -- Individual (Each of us is born Rights -- Individual (Each of us is born with certain inalienable rights)with certain inalienable rights)

• Responsibilities -- Mutual (Each of us Responsibilities -- Mutual (Each of us must accept the responsibility to guard must accept the responsibility to guard the rights of others -- especially those the rights of others -- especially those with whom we most deeply disagree)with whom we most deeply disagree)

• Respect -- Universal (Each of us must Respect -- Universal (Each of us must commit to debate out differences with commit to debate out differences with respect)respect)