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Meaning of 'plainly offensive' speech anything but clear

By David L. Hudson Jr.
First Amendment Center research attorney

A middle-school student wears a T-shirt to his public school with images of President George W. Bush, lines of cocaine and a martini glass. The student, who had obtained the T-shirt at an anti-war rally, wears it to school on many occasions without disruption. However, another student and a parent complain to school officials, who eventually discipline the shirt wearer.

These facts form the backdrop to a case from Williamstown Middle School in Vermont that ended up in a New York City-based federal appeals court. The 2nd U.S. Circuit Court of Appeals ruled Aug. 30 in Guiles v. Marineau that school officials violated the First Amendment when they punished student Zachary Guiles for his T-shirt. According to the 2nd Circuit, the student’s shirt was not “plainly offensive.”

The decision raises several interesting questions important to school administrators, teachers, students and parents. Perhaps foremost among these questions is one that now divides the federal appeals courts — what is “plainly offensive” student speech?

In the Vermont case, the 2nd Circuit determined that “the images depicted on Guiles’s T-shirt are not plainly offensive as a matter of law.”

“Plainly offensive” in this context refers to the U.S. Supreme Court’s 1986 decision Bethel School District No. 403 v. Fraser. In that decision, the Court ruled 7-2 that public school officials could punish a high school student for delivering a speech littered with sexual innuendoes to the student assembly. The Court wrote: “Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”

In the 2nd Circuit decision, the school officials argued that images of cocaine and alcohol were not socially appropriate for middle-school students. A federal district court agreed in 2004, concluding that such images “are an inappropriate form of expression for … middle school.”

However, the 2nd Circuit interpreted the rule from Fraser differently. It noted that many lower courts had interpreted Fraser as giving school officials authority to prohibit student speech that is vulgar, lewd, indecent or plainly offensive. “Courts that address Fraser appear to treat ‘plainly offensive’ synonymously with and as part and parcel of speech that is something less than obscene but related to the concept, that is to say, speech containing sexual innuendo and profanity,” the 2nd Circuit wrote.

In the T-shirt case, the shirt’s message was more akin to political speech, as in the Supreme Court's famous 1969 black-armband decision Tinker v. Des Moines Independent Community School District, than to the sexual speech at issue in Fraser.

According to the 2nd Circuit, if a court were given power to prohibit any student speech that was plainly offensive, then students would not be able to wear any anti-war clothing. Under a broad reading of “plainly offensive,” the black armbands in Tinker could be banned because they were plainly offensive to the patriotic sentiments of school officials.

The 2nd Circuit decision agrees with the rationale of another ruling in a student-speech case that has caused even more controversy, the Frederick v. Morse decision from the 9th Circuit — better known as the “Bong Hits 4 Jesus” case. In that March 10 decision, the 9th Circuit determined that school officials violated the First Amendment rights of Joseph Frederick, a student who unveiled the “Bong Hits 4 Jesus” banner when an Olympic torch relay passed his Alaska high school. The 9th Circuit ruled that Fraser and its “plainly offensive” language did not apply: “The phrase ‘Bong Hits 4 Jesus’ may be funny, stupid, or insulting, depending on one’s point of view, but it is not ‘plainly offensive’ in the way sexual innuendo is.”

The 2nd and 9th Circuits found that the Fraser rule applies to student speech that is vulgar or lewd or carries some sort of sexual connotation. They declined to apply the dictionary definition of “plainly offensive.”

The judges who made these decisions openly acknowledged that their rulings conflicted with the 6th Circuit’s determination of “plainly offensive” in its 2000 ruling in Boroff v. Van Wert City Board of Education. In that decision, Ohio public school officials punished high school student Nicolas Boroff for wearing a T-shirt featuring the shock-rocker Marilyn Manson with a three-faced Jesus with the words: “See No Truth. Hear No Truth. Speak No Truth” and the word “BELIEVE” with the letters “LIE” highlighted.”

Applying Fraser, a divided 6th Circuit panel determined that the T-shirt was plainly offensive. It promoted “disruptive and demoralizing values,” the panel majority wrote.

The division in the federal appeals courts, called a split in the circuits, makes it more likely that the Supreme Court could address this pressing legal question. A broad reading of Fraser means that school officials can silence student speech that is inconsistent with its basic educational mission and contrary to recognized social values. A narrower reading of Fraser means that school officials’ censorial powers are limited to sexually oriented, vulgar speech.

The Alaska school officials have already given official notification that they will appeal. An appeal in the 2nd Circuit case could be forthcoming, as well. If the Supreme Court takes one of these cases, it could answer the question of what is plainly offensive student speech within the meaning of Fraser. Much controversial student speech could hang in the balance.


High court refuses to hear Marilyn Manson T-shirt case

Former student had argued that Ohio high school violated his First Amendment rights by banning shirts depicting 'shock rock' star. 03.20.01

9th Circuit backs teen's right to display 'Bong Hits 4 Jesus' banner

Unanimous three-judge panel overturns lower court ruling, finds Alaska school officials violated Joseph Frederick's free-speech rights. 03.13.06

Court dresses down Vt. school over censorship of boy's T-shirt

2nd Circuit panel rules 3-0 that Zachary Guiles' First Amendment rights were violated when he was ordered to cover parts of anti-Bush shirt. 08.31.06

S.D. school confiscates teens' medical-marijuana T-shirts
Rapid City superintendent says political message is allowed, but not image of pot leaf. 11.07.06

Justices to hear 'Bong Hits 4 Jesus' case
Juneau, Alaska, school board appealing 9th Circuit ruling that teen's free speech was infringed when he was disciplined for showing pro-drug banner off-campus. 12.01.06

Supreme Court rejects school's appeal in anti-Bush T-shirt case
Cert denied in Vermont case in which 2nd Circuit had found school had no right to censor any part of seventh-grader's shirt. 06.29.07

Court may untangle student-speech cases with 'Bong Hits'
By Tony Mauro But whether Morse v. Frederick will end confusion for school administrators or add to it is far from clear. 12.04.06

Did student-speech rights go up in smoke?
By David L. Hudson Jr. Court's ruling in 'Bong Hits' case limits student speech, but it wasn't a complete disaster. 06.27.07

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