What is freedom of expression?
Freedom of expression refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas and emotions about different issues free from government censorship. The First Amendment of the U.S. Constitution protects the rights of individuals to freedom of religion, speech, press, petition and assembly. Some scholars group several of those freedoms under the general term “freedom of expression.”
Most state constitutions also contain provisions guaranteeing freedom of expression, and some provide even greater protection than the First Amendment.
Freedom of expression is essential to individual liberty and contributes to what the Supreme Court has called the marketplace of ideas. The First Amendment assumes that the speaker, not the government, should decide the value of speech.
What rights to freedom of expression do students have?
Public school students possess a range of free-expression rights under the First Amendment. Students can speak, write articles, assemble to form groups and even petition school officials on issues. The U.S. Supreme Court has said that students "do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate."
There is a fundamental distinction between public and private school students under the First Amendment. The First Amendment and the other provisions of the Bill of Rights limit the government from infringing on an individual's rights. Public school officials act as part of the government and are called state actors. As such, they must act according to the principles in the Bill of Rights. Private schools, however, aren’t arms of the government. Therefore, the First Amendment does not provide protection for students at private schools.
Though public school students do possess First Amendment freedoms, the courts allow school officials to regulate certain types of student expression. For example, school officials may prohibit speech that substantially disrupts the school environment or that invades the rights of others. Many courts have held that school officials can restrict student speech that is lewd.
Many state constitutions contain provisions safeguarding free expression. Some state Supreme Courts have interpreted their constitutions to provide greater protection than the federal Constitution. In addition, a few states have adopted laws providing greater protection for freedom of speech.
What has the Supreme Court said about free expression?
The U.S. Supreme Court has decided several cases involving the First Amendment rights of public school students, but the most often cited are Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988).
In Tinker, the Supreme Court said that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The court ruled that Iowa public school officials violated the First Amendment rights of several students by suspending them for wearing black armbands to school.
The court noted that the students’ wearing of armbands to protest U.S. involvement in Vietnam was a form of symbolic speech "akin to pure speech." The school officials tried to justify their actions, saying that the armbands would disrupt the school environment.
But, the Supreme Court said that "in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." School officials cannot silence student speech simply because they dislike it or it is controversial or unpopular. Rather, according to the court, school officials must reasonably forecast that student speech will cause a "substantial disruption" or "material interference" with school activities or "invade the rights of others" before they can censor student expression. The Tinker case is considered the high-water mark for student First Amendment rights.
In the 1980s, a more conservative Supreme Court cut back on students' free-expression rights in Fraser and Hazelwood. In Fraser, school officials suspended a high school student for giving a lewd speech before the student assembly. Even though Matthew Fraser's speech was part of a student-government campaign, the high court distinguished the sexual nature of the address from the political speech in Tinker.
"Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse," the court wrote in its 1986 decision. "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."
Two years later the Supreme Court further restricted student free-expression rights in Hazelwood. In that 1988 decision, several students sued after a Missouri high school principal censored two articles in the school newspaper. The articles, written by students dealt with divorce and teen pregnancy. The principal said he thought the subject matter was inappropriate for some of the younger students.
The students argued that the principal violated their First Amendment rights because he did not meet the Tinker standard -- he did not show the articles would lead to a substantial disruption. Instead of examining the case under Tinker, however, the Supreme Court developed a new standard for what it termed school-sponsored speech.
Under this standard, school officials can regulate school-sponsored student expression as long as the officials' actions "are reasonably related to a legitimate pedagogical interest." In plain English, this means school officials must show that they have a reasonable educational reason for their actions. The court broadly defined the school’s authority to regulate school-sponsored expression, writing that school officials could censor material which would "associate the school with anything other than neutrality on matters of political controversy."