Free Speech Rights for Students

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. Consider the plight of young Peter Lander Jr. in the late 1850s, who ran afoul of school authorities in Burlington, Vt., when he used “saucy and disrespectful” language to his school teacher, A.B. Seaver, while walking home from school. Lander had the temerity to utter “Old Jack Seaver” at his schoolmaster, earning a rawhide beating at school the next day. A Vermont court examined whether school officials had the legal authority to punish Peter Lander for his off-campus conduct – a situation strikingly similar to many of the Facebook and MySpace cases percolating in the federal courts. The U.S. Supreme Court has been asked in multiple cases to delineate the boundaries of school and parental authority in student Internet-speech cases.   

Other free-speech controversies emerged during the trials and tribulations of World War II, the civil rights movement and Vietnam War. Students faced punishment for refusing to salute the flag and recite the Pledge of Allegiance, for wearing “Freedom Buttons” to protest segregation and voting rights discrimination and for speaking out against U.S. involvement in Vietnam. Today, students still face punishment for refusing to recite the Pledge and for wearing other items imbued with symbolic speech, such as “I Love Booby” bracelets. 

Civic education must be emphasized and embraced. Students must learn in an environment that fosters more than a theoretical discussion of the Constitution and the Bill of Rights. Dissonance occurs when students learn in theory about the freedoms in the Bill of Rights, including the First Amendment, but then face a reality of censored control based on a prison model. This disconnect between the real and the ideal can cause cynicism and apathy on the part of students. U.S. Supreme Court Justice Robert Jackson warned of this more than 65 years ago: “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”