Cultivating Justice: Empowering Youth

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First Amendment Right to Free Speech

What Did you Say?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances." (ratified, December 1791)

Although there are six clauses in the First Amendment, about half of the people in America today can correctly identify free speech as a First Amendment right. But many misunderstand the right. The most frequent misconception is that the First Amendment allows anyone to say anything at any time to anyone they want. This is mostly true, but the First Amendment free speech clause only comes into play when it is the government that is limiting speech. The Free Speech clause only guarantees a person the right to speak freely without government suppression. The First Amendment has nothing to say about what private citizens say to one another most of the time. It does not prohibit private parties or corporations from creating boundaries for acceptable speech on their own terms!

For example, Facebook, Instagram, X (formerly Twitter), Snapchat, and other social media platforms are privately owned companies with very limited government regulations. Since they are not government owned or controlled, privately held social media can regulate content. At the moment, at least, privately held media companies control the content of these platforms, not any government entity, although government regulations have recently been proposed.

But the First Amendment right to free speech is not unlimited, even from government suppression. It does not protect certain types of speech. For example, political speech that incites imminent lawless action is not protected by the Constitution (Brandenberg v. Ohio⁠ ¹ reviewed below); certain obscenities and child pornography do not enjoy a Constitutional right to free speech; fighting words, fraud, defamation (New York Times v. Sullivan⁠ ² reviewed below), true threats, and speech that is integral to criminal conduct are not protected types of speech. You can’t say those things!

School grounds are hot playgrounds for Constitutional issues because public school grounds are government entities run by the State. Thus, rules that limit public school students’ speech might be in violation of the constitutional rights of those students. But the issue⁠* in our first story isn’t so much what speech is, or is not, protected by the First Amendment. The question is: where exactly is the end of the public school grounds?

NOW…

Mahanoy Area School District v. B.L. (Brandi Levy, a minor) (2021)

⁠ ³In 2017, when Brandi Levy was a fourteen-year-old freshman at Mahanoy Area High School in Pennsylvania, she tried out for the varsity cheerleading squad. She didn’t make the varsity team but was offered a spot on the junior varsity cheerleading squad. That weekend, off campus at a corner grocery store, frustrated and angry that she didn’t make the varsity team, Brandi and a friend took a photo of her with her middle finger up. She posted it on Snapchat with the caption that read, fuck school fuck softball fuck cheer fuck everything.

Brandi had about 250 friends on Snapchat, some were also students at Mahanoy High School and on the cheer squad. The photo and caption were up on Snapchat for about twenty-four hours. In that twenty-four hours, another student took a screenshot of the post and shared it with other members of the cheerleading squad. The post spread. One of the students showed the photo to her mother, who was a cheerleading coach. That week, several cheerleaders and students appeared visibly upset by the posts. The coach discussed the matter with the principal and the other coaches. As a result, the coaches decided to suspend Brandi from the junior varsity team for a year. She later told reporters that the decision upset her greatly and that she cried the whole time. Although Brandi apologized to the school and the school’s athletic director, principal, superintendent, and school board, they all affirmed Brandi’s suspension from the team.

Brandi, along with her parents, filed a lawsuit in Federal District Court for violation of her First Amendment right to free speech. The panel of justices in the lower District Court sided with Brandi, but for different reasons. The majority of justices in the lower Federal Court said that the conduct was not substantially disruptive enough to warrant disciplinary action. The remaining justices said that her conduct was not on school grounds and, therefore, could not be disciplined by school authorities.

After the initial court ruling, and as part of the ruling, she was reinstated to the junior varsity cheerleading squad. But the Mahanoy School District was unhappy with the decision and appealed the court’s decision to a Federal Court of Appeals. The Appeals Court also agreed with Brandi. It ruled that the disciplinary measures that the school took were in violation of her First Amendment right to free speech.

The Mahanoy School District appealed again—this time to the US Supreme Court. The school district specifically asked the US Supreme Court to decide whether Tinker v. Des Moines⁠ ⁴ (reviewed below), which holds that "public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school [on-campus]," applies to student speech that occurs off campus.

In answering that specific question, the US Supreme Court held in Mahanoy v. B.L. that "while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B.L.’s [Brandi’s] interest in free expression in this case."⁠ ⁵ The Supreme Court’s wording leaves the door open for schools to discipline some things said by students outside of school.

The Court’s decision was premised on three points: first, schools are traditionally not "in loco parentis, which is a legal term meaning that schools are loath to stand in the shoes of parents. Where parents can do the disciplining, schools will not step in the way. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility."⁠ ⁶

Second, although the facts of this case took place in 2017 (pre-pandemic), take a look at when it was decided—2021. We were still in the middle of a pandemic. The prior year, all students were off-campus. Yet, every student was on campus remotely everywhere! Deciding what could be regulated off campus, especially at a time when social media was perhaps the only means of socializing for a teen, proved to be all-encompassing. Schools would need to monitor all speech of all students 24/7. The Court wisely decided that this was too much to ask of schools.

Third, and most importantly, the Court’s long-standing view is that schools have a particular interest in protecting a student’s unpopular expression. The Court has often said that America’s public schools are the nurseries for democracy.

Despite Brandi’s vulgar language, had she been an adult there would be no question that she had a constitutional right to say what she said. Furthermore, she didn’t direct it at anyone in particular. It wasn’t a threat of violence. Her intended audience was only her private circle of Snapchat friends. It didn’t amount to fighting words. And it wasn’t really obscene by the Court’s prior definition.

Yet in this case, the Court also said public schools may have a special interest in regulating some off-campus student speech. The Court listed a number of incidents where a student’s speech could be regulated. Here’s a checklist of instances where the Court ruled that schools can take disciplinary action against student speech:

[Unpopular] speech that others may reasonably perceive as being endorsed by the school—not okay (Hazelwood v. Kuhlmeier, ⁷ reviewed below)

Indecent, lewd, or vulgar speech uttered during a school assembly on school grounds—not okay (Bethel School Dist. v. Fraser, ⁸reviewed below)

Speech during a class trip that promotes illegal drug use,—not okay (Morse v. Frederick,2007) ⁹

Finally, in Tinker v. Des Moines ¹⁰ (reviewed below), the court said schools have a special interest in regulating speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others.⁠ ¹¹

In order to clarify the High Court’s holding in Mahanoy v. B.L., we need to step back in history a short ways to Des Moines, Iowa, 1965.

THEN . . .

Tinker v. Des Moines (1969)

⁠ ¹²

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

—Abe Fortas

⁠ ¹³

Students in America now enjoy the right to speak freely in public schools largely as a result of the actions of John and Mary Beth Tinker, who fought for their right in 1965, when John was in tenth grade and Mary Beth was in junior high in Des Moines, Iowa. Tinker v. Des Moines is a significant case and its reach into present day free speech rights is enormous, and yet the facts of the case are very simple.

Five students in Des Moines, Iowa, wore black armbands to school to symbolize their protest against the Vietnam War in 1965. The students were following a suggestion made by Senator Robert Kennedy and, with the approval of their parents, they wore black armbands to school as a symbol of protest. The students met in a fellow student’s garage beforehand and planned their peaceful protest.

Another student from the school approached a journalism teacher and asked to write a piece on the Vietnam War. That student revealed to the journalism teacher that a number of students would wear black armbands to school. Hearing that students were planning to protest, the school administrators quickly made a rule banning the symbolic speech and forbidding the wearing of black armbands by threat of suspension. The students quietly, without disruption to their regular classes, wore the armbands anyway. They were suspended from school and sent home. John Tinker, age fifteen; Christopher Eckhardt, age sixteen; and Mary Beth Tinker, age thirteen brought a lawsuit against the Des Moines Independent Community School District under the free speech clause of the First Amendment, which guarantees that the government will not impede free speech.

Rules about free speech in schools are especially challenging. Schools place limits on speech because there is a need to prevent disorder in the classroom. The 1960s in America were years of civil unrest. Violent riots were daily news stories. Every day, protestors of the Vietnam War were leading a war at home against the continuing war abroad. And the Des Moines School District argued that it was the threat of violence that caused them to ban the students’ symbolic speech. Initially the case was heard by the Federal District Court, which sided with the school district.

The students appealed, and the case was taken up on appeal to the US Supreme Court. The US Supreme Court is asked to review on appeal approximately 7,000 cases a year. It obviously does not hear every case that is appealed. In fact, it only issues approximately one hundred to 150 opinions a year. The petition, or appeal, to the highest court (dubbed the court of last resort) is called a writ of certiorari. The writ needs to be carefully written to get the Supreme Court interested in the case. Often, it’s the attorney’s job to clearly write the story and explain the conflict.

It is often said that the wheels of justice move slowly; so slowly that perhaps the matter gets resolved before the right is determined by justice. After a writ of certiorari is granted (meaning the US Supreme Court agrees to hear the case), the case is argued before the justices of the Court. In this case, although the students were suspended in December 1965, oral argument did not take place until November 1968, nearly three years later. If an issue is already decided by some other means and no longer needs the court’s involvement, it is said to be moot.

Concerned that the case would become moot after John, Christopher, and Mary Beth graduated from high school, the students asked for damages of one dollar. They would still have something that needed to be determined by the Court, even if their suspension played out and they graduated before the case was decided. At oral argument, the attorney for the Tinkers, Dan L. Johnston, had this to say in response to a question posed by Justice Earl Warren who asked, What happens if the Vietnam War ends before we decide this case?

. . . [M]y own experience, and I’m sure the Court’s experience, is that this is not an isolated problem, that the correct balance between the interest of the school in maintaining discipline and decorum and the rights of the students who, because I believe of the improvement in American education, have increasingly moved to have opinions and to want to express opinions, that this kind of situation arises and will continue to arise.⁠ ¹⁴

Mr. Johnston could not have foreseen how right he was and what an impact this case would have on future students! This case has become the standard to which all public schools measure tolerance of student expression.

The US Supreme Court reversed the Federal District Court’s decision and sided with the students seven to two. In coming to their decision, the Supreme Court emphasized that there was no material interference with school activities and no disturbance or disorder on the school premises. The students were free to have opinions and express them at school so long as it did not disrupt learning. In fact, the Court said that they should be encouraged to discuss and exchange important ideas.

The opinion in Tinker v. Des Moines is a foundation for advocacy of free speech especially relevant to public schools because education is, and should be, more than just passing on knowledge from one generation to another. Education is only successful if the students can reach conclusions through an exchange of ideas. Young minds eager to learn should be free to debate the issues of the day, even if they are controversial. In an earlier case, Keyishian v. Board of Regents, Justice Brennan described classrooms as the ‘marketplace of ideas’ on which the nation’s future depends. He said:

‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ (citation omitted). The classroom is peculiarly the ‘marketplace of ideas.’ The nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’ (Keyishian v. Bd. of Regents)⁠ ¹⁵

Since it was finally decided in 1969, Tinker v. Des Moines has provided the backdrop for a host of cases involving schools, student, teacher, and school administrative rights, including Brandi Levy’s case.

To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.

Justice Thurgood Marshall

⁠ ¹⁶

Consider this:

Justice Stephen Breyer, who wrote the majority opinion in the Mahanoy v. Brandi L. case, said, "It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary. ‘We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.’ (citation omitted.)"⁠ ¹⁷

What do you think Justice Breyer meant by that? Why do you think he said, it might be tempting to dismiss B.L.’s words as unworthy of the robust protections of the First Amendment?

Compare and contrast the two cases on freedom of speech at school. What are the similarities? What are the differences?

The Brandi L. case talks a lot about what speech the parents can control and what the school should control. In Tinker v. Des Moines, the focus is more on the student’s freedom to speak. What party in each do you think is in the most control of a student’s speech?

Brandi’s case took four years to finally decide. She was a freshman at the time of the incident and a senior in high school, near graduation, by the time it was all over. After the Supreme Court’s decision she said that it was a long four years. Do you think Brandi regretted saying those things on a public forum? Are the words she used commonly used at school?

School authorities obviously disagreed with the viewpoints expressed both by Brandi L. and by the Tinkers. Do you think viewpoints should or should not be discussed at school?

There does not seem to be any evidence that the student that took the screen shot of Brandi’s post and spread the photo was disciplined. Do you think that student should have been disciplined? Or do you think that was free speech too?

Can you think of other instances where speech should be protected from school discipline? Are there other instances where students should be disciplined because of speech?

Have you witnessed, or been a part of, unpopular or political speech that led to discipline at school? Did material interferences with school activities and disturbances or disorders on the school premises occur? Or was it a robust exchange of ideas?

ADDITIONAL RESOURCES:

Chapter 1: Free Speech

If you or one of your classmates believes that your school, school district, or its administrators have violated your First Amendment right to freedom of speech, you can contact the American Civil Liberties Union (ACLU).

High school students can apply to join hundreds of young people for the summer in Washington, D.C., with ACLU advisors to practice advocacy and activism skills.

Support Every Student’s Right to Learn with the ACLU.

See: the ACLU online resources on issues of Students’ Rights: Speech, Walkouts, and Other Protests.

Attend an ACLU event in your area.

Listen to the podcasts about free speech to learn more about your rights. There is an excellent podcast on the ACLU website titled Ask an Expert: What are My Speech Rights At School?

Look to see if there is a Junior State of America (JSA) chapter in your area. JSA is a student-led organization preparing students of all ages to participate in democracy.

Follow reliable news sources. There are several outlets that provide truthful accounts and fact-check social media.

Find news on free speech rights. The Knight First Amendment Institute at Columbia University has educational opportunities and provides research assistance along with news on current events concerning free speech and social media and engages in litigation for the protection of the First Amendment right to free speech.

The Institute for Free Speech also has a legal team that defends First Amendment rights across the country and provides news, research, and commentary on free speech issues.

The Foundation for Individual Rights (FIRE) provides advocacy for all of the First Amendment rights and works to reform legislative policies.

Education Unlimited offers camps and programs to teach advocacy skills like debate and speech courses.

The Institute for Citizens and Scholars provides education for democracy.

Civics for Life is a multigenerational online resource for civics education, civil discourse, and civil engagement.

The Sandra Day O’Connor Institute for American Democracyis a nonprofit organization founded by our first female US Supreme Court Justice, Sandra Day O’Connor.

Visit the US Department of Education, Office of Elementary and Secondary Education, American History, and Civics for additional resources.

Visit the National Constitution Center’s Supreme Court Case library.

* Most US Supreme Court cases involve only one or two issues. An issue in this context means a legal question that the court will resolve.

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Defining Freedom of the Press, and What Speech Is Free Speech?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances." (Ratified, December