First Amendment topicsAbout the First Amendment
Alito repudiated speech code

By Robert M. O’Neil
Special to the First Amendment Center Online

Robert O’Neil

This article is part of an online symposium on the First Amendment Center Online concerning Judge Samuel Alito’s First Amendment jurisprudence.

In the effort to appraise the constitutional jurisprudence of Judge Samuel Alito, few decisions are likely to be more helpful than his 2001 invalidation of a Pennsylvania school district’s ban on harassing student speech. The case was Saxe v. State College Area School District.

Writing for a unanimous panel of the 3rd U.S. Circuit Court of Appeals, Alito painstakingly analyzed several theories on which school authorities might validly proscribe verbal harassment. In the end, he rejected each such rationale and concluded that, whatever legitimate interests public schools might have in constraining such expression, the challenged policy exceeded those interests and thus violated First Amendment standards. The ruling was as important as the issue was novel, and now clearly merits closer scrutiny than it received at the time.

‘Verbal harassment’ and the First Amendment
The policy at issue defined harassment as “verbal or physical conduct based on one’s actual or perceived race, religion … or other personal characteristics, and which has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment.” Illustrative applications followed the definition, including among others “unsolicited derogatory remarks, jokes, demeaning comments or behaviors, mimicking [and] name calling.” The citation of such varied and imprecise examples might well have doomed the policy at the outset, since the examples revealed an official design to extend the ban well beyond constitutionally permissible bounds. But Alito and his 3rd Circuit colleagues gave the school board the benefit of the doubt and focused on the terms of the policy itself before sustaining this facial challenge.

The opinion first addressed the elusive nature of “harassment” under the First Amendment — noting that non-expressive physical conduct enjoys no constitutional immunity, and that some forms of verbal harassment may be banned. What followed was a clear and careful analysis of the distinction between protected and unprotected harassing speech. The starting point is appropriately the Supreme Court’s R.A.V. v. City of St. Paul (1992) decision, barring content- and viewpoint-based distinctions even in the regulation of less than fully protected speech. That ruling made clear that government may regulate verbal harassment in the workplace, for example, to ensure a non-discriminatory jobsite — an analogy on which the school district relied heavily in this case.

That analogy failed, however, because the challenged policy exceeded the analogous regulatory interest — specifically, the policy extended “beyond harassment that denies a student equal access to a school’s educational resources.” Later, the court recognized that public schools may have a right — indeed even a duty — to take steps that would “maintain an orderly and non-disruptive educational environment” with specific regard to harassing speech. But the policy at issue had substantially surpassed that undoubtedly valid interest.

Free speech in a school setting
There remained the board’s separate claim that such a ban on student speech could be justified on grounds distinctive to the school setting. That issue took the court back through the series of Supreme Court rulings on student expression that began with the recognition of student-speech rights in Tinker v. Des Moines Independent Community School Dist. (1969) (black arm band case) and included the narrowing judgments in Bethel School Dist. No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988), which sustained respectively school power to punish vulgar language at a school assembly and to delete unapproved material from a student newspaper.

Judge Alito’s emphasis on the limited scope of these three rulings is quite striking: Not only did Tinker demand proof of actual (or imminent and unavoidable) “disruption” before a school bans student expression, but Fraser applied only to “lewd, vulgar or profane language,” while Hazelwood came into play only where “a student’s school-sponsored speech could reasonably be viewed as speech of the school itself.”

With the relevant Supreme Court rulings thus cabined, the distance between what a school board may do in regulating student expression and what this board sought to do became clear to Alito. The challenged policy punished not only actually disruptive speech (as it could) but also forbade speech that “merely intends to do so,” thus exceeding permissible First Amendment limits. Finally, targeting speech that “creates an intimidating or offensive environment” did seem somewhat closer to permissible restraint. But when viewed in the context of its textual scope and the accompanying illustrations, the policy “appears to cover substantially more speech” than the Supreme Court’s rulings would permit. Hence, it was unacceptably overbroad.

Apart from the result and its careful analysis of difficult First Amendment issues, Alito’s Saxe ruling invites closer scrutiny. Invalidating a speech code or anti-harassment policy does not, by itself, necessarily strike a novel blow for free speech. Every such policy that has been challenged at the college level has been quickly dispatched as vague or overboard or both. The fate of such a policy at the high school level might, however, have been seen very differently — both because the Supreme Court has given secondary schools greater power over student expression and because courts might be more sympathetic to a school board’s interest in protecting the learning process by regulating harassing speech. Neither of these distinctions proved persuasive to Alito and his 3rd Circuit colleagues — suggesting a disdain for speech codes that reaches below the college level.

Beyond ideological boundaries
A skeptic might dismiss this ruling simply as evidence of mounting judicial aversion to “political correctness.” Such an inference might be heightened by noting that the plaintiffs “openly and sincerely identified themselves as Christians” to whom “homosexuality is a sin” and who believed “they have a right to speak out about the sinful nature and harmful effects of homosexuality.” Yet nothing in the constitutional analysis seemed driven by the particular viewpoint of the students whose desire to speak freely brought the issue to court. And within the First Amendment community, hostility to speech constraints driven by political correctness has, for a decade and a half, crossed ideological and partisan lines.

In the end, Judge Alito said more than need have been said on two important First Amendment issues. The first was the permissible scope of sanctions against verbal harassment, always an elusive matter. Alito’s warning that well-intentioned anti-harassment policies risk punishing speech that neither intimidates others nor pervasively poisons the learning environment should temper government regulation of workplace, as well as school, speech. The other helpful contribution concerns student speech and its limits. At a time when Tinker’s exceptions threaten to reach college students and their publications, Alito’s insistence on a fairly narrow interpretation of Fraser and Hazelwood and his strict application of Tinker’s “disruption” standard remain timely and valuable.

Robert O’Neil is the director of the Thomas Jefferson Center for the Protection of Free Expression. He is an authority on the First Amendment and teaches constitutional and Internet law at the University of Virginia. He came to the university in 1985 to become its sixth president, a position he held until 1990. His publications include Free Speech in the College Community (1997).


Justices may take centrist view of 'Bong Hits' case

By Tony Mauro Wariness of giving schools too much power over student speech contends with desire to help them fight drug use. 03.20.07

Online symposium: Samuel Alito & the First Amendment

Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.

print this   Print

Last system update: Friday, July 25, 2008 | 12:31:02
About this site
About the First Amendment
About the First Amendment Center
First Amendment programs
State of the First Amendment

First Reports
Supreme Court
First Amendment publications
First Amendment Center history
Freedom Sings™
First Amendment

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment

Lesson plans
Contact us
Privacy statement
Related links