defending free speech in public schools

Frank LoMonte is Executive Director of the Student Press Law Center. His talk at this year’s National Conference on Citizenship really drew my attention to the lack of First Amendment rights in our schools.

Students should exercise freedom of speech, assembly, and the press* because: 1) that is how they can learn to use those rights in our democratic system; 2) they are human beings with intrinsic rights to express themselves; 3) the school represents the state and should behave like a limited government that respects rights; and 4) student journalists are well placed to uncover and discuss serious issues that society must understand. Especially considering that teachers have very limited rights of expression–and most professional education reporters have been laid off–student journalists represent essential sources of information pertinent to school reform.

Alas, under the Supreme Court’s Hazelwood decision (1988), students have limited rights to free speech in officially sanctioned student media. No one has unlimited rights: adults cannot threaten, libel, or harass. But student journalists have much more constrained constitutional rights—or so says the Supreme Court. Their work can be subject to prior censorship, and administrators have wide latitude to block it for educational reasons. This means that some students have what I regard as highly legitimate complaints about censorship that do not prevail in court.

That said, Hazelwood did not exile the First Amendment from schools. Administrators may censor, but they may not censor viewpoints. If, for instance, a high school newspaper takes an editorial position against a controversial school policy, that is protected—contrary to popular belief.

Hazelwood should be overturned, in my opinion. Failing that, LaMonte offers alternative strategies.

One is legislative. Hazelwood sets an inadequate minimum level of free speech in the nation’s schools. But states can set higher bars, declaring by statute or regulation that students have rights against prior censorship. Nine states have done so.

A second strategy involves changing administrators’ priorities. Apparently, many prospective assistant principals, principals, and superintendents take courses and training sessions that merely address the disadvantages of student expression. They are given examples of speech that caused headaches and are reminded that they have the right to censor it. Virtually no time is spent talking about the benefits of student expression. Even if some free speech is offensive or stupid, a climate of free expression is valuable for schools, just as it is for democracies writ large. See John Stewart Mill for arguments.

Finally, LoMonte has advice for student journalists. They play an important social role, and their rights are tenuous. Under those circumstances, they should steer away from frivolous and needlessly controversial speech. As LoMonte writes, “If you must do humor – and with only one newspaper a month, why waste that precious space? – then do outlandish humor that obviously mocks national celebrities, not cruel jokes about the appearance or character flaws of classmates or administrators.” In principle, I would defend the right of students to use their media for dumb purposes (and perhaps learn from the consequences). But they don’t really have that right under current US law. And regardless of their legal standing, the best advice is to keep their journalism serious, tough, and focused on issues. Then, if they end up in a battle with the superintendent over their expression, at least it is a battle worth winning.

*They should also exercise the remaining rights in the First Amendment–free exercise of religion and free worship–but those require somewhat different arguments.