Author Archive | David Hudson, guest-blogging

Civil Rights, Free Speech and Freedom Buttons

The First Amendment proved a crucial tool during the civil rights movement. Likewise, much First Amendment jurisprudence arose during the galvanizing social movement of the 1950s and 1960s, as civil rights protestors marched in the streets, protested segregation laws, assembled on public streets and faced defamation suits for speaking out on public abuses.

Consider the litany of important U.S. Supreme Court cases that arose during the civil rights movement. Three examples are: NAACP v. Alabama (1958) recognized a right of association and protected NAACP members from harassment by the repressive state government; Edwards v. South Carolina (1963) involved a pristine example of assembly and petition rights, as 187 African-American youths had their breach-of-peace convictions overturned for marching to the state capital protesting segregation; New York Times Co. v. Sullivan (1964) not only constitutionalized libel law but also arguably saved the civil rights movement by protecting the editorial advertisement in the New York Times from a state libel suit that arose in the Alabama state court system.

The civil rights movement also proved significant for the development of student speech. When many think of student speech, they naturally think of the seminal U.S. Supreme Court decision, Tinker v. Des Moines Indep. Comm. Sch. Dist. (1969) when the high court ruled that school officials in Iowa violated the First Amendment rights of students by suspending them for wearing black peace armbands to protest the Vietnam War.

The Court developed the “substantial disruption” standard in Tinker, providing a test to determine whether student speech received free-speech protection.

But, Tinker did not arise from a legal vacuum. The Court did not create the “substantial disruption” test.

The Supreme Court borrowed the test from a pair of 5th Circuit decisions out of Mississippi.

In my new book Let The Students Speak: A History of the [...]

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On Campus Versus Off Campus

One of the most pressing issues in student-speech jurisprudence concerns when school officials can punish public school students for posting profane, racy, bullying or otherwise objectionable material online.

Several federal courts of appeals have weighed in on the issue, heightening the possibility of U.S. Supreme Court review.

A court – as some concurring judges did in the 3rd Circuit’s en banc decision in J.S. v. Blue Mountain School District – could simply hold that school officials simply don’t have jurisdiction over material created off-campus and not brought to school by the creating student.

Other courts have applied the familiar “substantial disruption” test from Tinker v. Des Moines Independent School District (1969) and asked whether school officials could reasonably forecast that the student online speech would create a substantial disruption or material interference with school activities. The 4th U.S. Circuit Court of Appeals used this test to find that school officials in West Virginia had the authority to punish a student for objectionable online material in Kowalski v. Berkeley County Schools.

In the past a few courts have even relied on the Supreme Court’s 1986 ruling Bethel School District v. Fraser in which the Court ruled that public school officials can punish students for vulgar and lewd speech. Other courts have limited application of the Fraser test to speech that actually takes place on school grounds, as Matthew Fraser delivered his sexually-laced speech before an actual school assembly.

As I discuss in my new book – Let The Students Speak: A History of the Fight for Free Expression (Beacon Press, 2011) school officials have been grappling over how far their arms of authority extend for many years.

In the book I tell the story of two federal district court cases – Klein v. Smith, 635 F.Supp. 1440 [...]

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