Speech and expression

By David L. Hudson Jr., a scholar at The First Amendment Center who teaches at Vanderbilt Law School, Middle Tennessee State University and Nashville School of Law.

A student wears facial jewelry and sports several tattoos on various parts of her body. Another student protests his school’s restrictive dress code by wearing logos bashing the dress code and the school principal. Another student, upset over a bad grade, creates a fake online social media profile page of his teacher and writes all sorts of nasty things about him. Another pupil writes an editorial about the sexual practices of high school students that is pulled from the paper by the principal. 

These hypotheticals are more real than imagined, as battles over freedom of expression occur daily in public schools across the country. In the post-Columbine environment replete with heightened sensitivity to cyberbullying, more and more student expression is subject to censorship by school officials.  

In my new book Let the Students Speak!: A History of the Fight for Free Expression in America’s Schools, I not only examine many of these hot-button, free-speech issues in public schools, but also take readers on a historical tour of this fascinating area of law and policy.  

Many of the older disputes bear striking resemblance to modern free-speech controversies. 

Some landmark Supreme Court case names can easily be recalled by some, think Brown v. Board of Education or Lawrence v. Texas. Even a few Supreme Court Justices, though not by many Americans, can be recalled by a few. It is, however, a futile task to find even a handful of people able to name leading litigators who argue before the high court helping to produce some of those landmark cases.

But the First Amendment Center Fellow Ronald K. L. Collins says it would be “salutary to return to the old practice, and to give credit where credit is due.” Collins gets us started with this post for the First Amendment Center recognizing lawyers who he calls “friends of the First Amendment.”

Topping the list is former ACS Board Chair Paul M. Smith, a longtime, highly successful Supreme Court litigator and partner at Jenner & Block. Smith (pictured) argued the Brown v. Entertainment Merchants Association case before the high court this term and won. The high court in the case refused to create another category of speech – there are not many – unprotected by the First Amendment, when it invalidated a California law that banned the sale or rental of violent video games to minors.

Collins writes:

Smith, a partner at Jenner and Block, is as good as they come. He has argued 14 cases in the Supreme Court, including the landmark gay-rights case, Lawrence v. Texas (2003) – another victory others thought unlikely.

Collins notes that SCOTUSblog’s Lyle Denniston, yes a longtime Supreme Court reporter, had suggested shortly after the oral argument in the violent video games case that Smith may have blundered strategically when he argued “that there simply is no problem that legislatures need to try to solve nor is there any way constitutionally that they could craft a solution if they tried.”

And at the end of the day, Smith “prevailed by a comfortable 7 – 2 score,” Collins writes. “Not only that,” he continues, “but the case is chock-full of wonderful First Amendment dicta, or maxims, from the concurring justices, some of which echo arguments Smith offered both in oral arguments and in his briefs to the Court.”

Smith discussed the violent video games case and other First Amendment cases from the Court’s latest term at the ACS Supreme Court Term Review. Video of the event is available here.