The Edmond Sun

February 2, 2013

Students maintain free speech rights, with limits

Matt Hopkins
Ask A Lawyer

EDMOND — EDITOR’S NOTE: This is a weekly series of columns written by attorneys at Lester, Loving & Davies law firm in Edmond.



Q: Do children have free speech rights at school?

A: American jurisprudence has, for a century, made it clear that neither students nor teachers shed their rights to free speech at the schoolhouse door. So, we begin with the concept that a student’s speech at school is generally as protected as anyone’s free speech rights anywhere. But all rights have limits. And cases interpreting constitutional rights long have recognized that the nature and limits of rights are, to some degree, dependent on the circumstances surrounding their exercise.

The U.S. Supreme Court addressed the issue in 1969 in the seminal case of Tinker vs. Des Moines, 393 U.S. 503. In Tinker, five students wore black armbands to school in protest of the war in Vietnam. The school administration, previously having learned of the planned protest, adopted a policy prohibiting the display of armbands on school property. When the students refused to remove the bands, they were suspended.

The Tinker case illustrates the legal issue well. Students have the right to free speech, unfettered by government control. Schools, though, need to provide order on campus. When the two needs bump up against each other, how does the law make them interact and coexist?

The Tinker case provides the basic rule. Schools only may limit students’ free speech when the speech materially and substantially interferes with the requirements of appropriate discipline in the operation of the school, or when the speech interferes with the protected rights of others. Because the Tinker students’ display of armbands did not interfere with operation of the school or with the rights of other students or faculty, the school could not ban the students’ display of armbands.

Other cases have defined additional exceptions to students’ free speech rights. Schools may regulate student speech when the speech is indecent. Sexual innuendo in a student speech at a school assembly, then, is not protected and can be regulated. Schools may limit the content of school-sponsored papers when the limitation is for a legitimate educational reason. Schools may prohibit speech at school-sponsored events when the speech promotes illegal drug use.

Today, the most interesting free speech issue may well be the degree to which schools can regulate student speech that occurs on public forum websites. The rapid growth of technology has greatly expanded opportunities for students to publicize comments that may offend or disrupt. We will address this issue in future articles.



MATT HOPKINS is an attorney for Lester, Loving & Davies P.C. More information is available at lldlaw.com. Send questions to questions@lldlaw.com.