FAQ

First Amendment Center (6)

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Yes, as schedules and duties permit, Newseum Institute’s First Amendment Center experts speak to groups and conferences or participates in programs. Generally, the inviting group must fund travel-related expenses for the First Amendment Center participant. The Center welcomes invitations to participate in nonpartisan, educational events about First Amendment issues.

The Newseum Institute’s First Amendment Center does not provide legal representation and does not fund litigation. We’re a nonprofit organization focused on education and information about First Amendment issues.

No, you need a qualified attorney for that. Laws differ from state to state. Martindale, Findlaw and other online legal services offer ways to find lawyers by specialty where you live. However, the information posted on our site may help you and your attorney. Use the search engine for topics or terms that interest you.

The mission of the Newseum Institute’s First Amendment Center is to serve as a nonpartisan source of information, rather than as a participant in legal disputes. Therefore, the Center does not file amicus briefs.

No. We are an educational organization. We provide information and sometimes expert testimony that members of Congress or others may find useful, but we do not lobby.

Our website has a wealth of information that may be useful in your project. Search the site for your topic and other terms that interest you. If you quote or paraphrase our information, be sure to cite where you obtained it.

Free Spirit (11)

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All candidates will be notified by mail no later than mid-May 2017. Recipients will be required to sign an acknowledgment form to confirm their acceptance. Scholars’ names will be posted online in early June 2017.

No. Freedom Forum will pay all expenses for travel, lodging, ground transportation and meals for participants. Additional details will be sent to the winners in mid-April 2017.

The conference will be held June 16-21, 2018, at the Newseum. Scholars will stay in a Washington, D.C., area hotel.

The Close Up Foundation, which has been bringing high school students to Washington, D.C., for 30 years, will handle travel logistics. The foundation also will provide supervision and oversight of participants.

No. All scholars are required to participate in the entire conference. This is an inspiring opportunity to interact with distinguished journalists, visit newsrooms, tour Washington and share experiences with other Free Spirit Scholars.

Applicants must be U.S. citizens or permanent residents.

Freedom of Speech (73)

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Freedom of expression refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues free from government censorship. The First Amendment of the U.S. Constitution protects the rights of individuals to freedom of religion, speech, press, petition, and assembly. Some scholars group several of those freedoms under the general term “freedom of expression.”

Most state constitutions also contain provisions guaranteeing freedom of expression. Some provide even greater protection than the First Amendment.

Freedom of expression is essential to individual liberty and contributes to what the Supreme Court has called the marketplace of ideas. The First Amendment assumes that the speaker, not the government, should decide the value of speech.

Academic freedom has an institutional and individual component. Academic freedom refers to the right of a university to determine its educational mission free from governmental intervention. This is institutional academic freedom. Academic freedom also refers to the right of an individual professor to teach her or his curriculum without undue interference from university officials. This is individual academic freedom.

The American Association of University Professors in its 1940 Statement of Principles of Academic Freedom and Tenure defined academic freedom as “full freedom in research” and “freedom in the classroom in discussing their subject.” The statement with regard to freedom in the classroom also states that teachers “should be careful not to introduce into their teaching controversial matter which has no relation to their subject.”

Still another aspect of academic freedom refers to the ability of university professors to be able to speak as private citizens without fear of reprisal from their universities or the government. The AAUP’s statement provides: “When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations.”

The act provides a cause of action to a trademark holder when someone registers a domain name of a well-known trademark — or something very similar to it — and then attempts to profit from it by ransoming the domain name back to the trademark holder or by using the domain name to divert business from the trademark holder to the domain-name holder. Cybersquatters buy up the domain names of well-known companies in the hopes of profiting by selling the online “real estate” back to the trademark holder. Whether a cybergriper violates the anti-cybersquatting law depends on whether the griper has bad-faith intent to profit from the purchase of the domain name.

However, there is no per se commercial-use requirement in the anti-cybersquatting law. As the 9th Circuit recently wrote in its 2005 decision Bosley Medical Institute, Inc. v. Kremer: “Allowing a cybersquatter to register the domain name with bad faith intent to profit, but get around the law by making noncommercial use of the mark, would run counter to the purpose of the act.”

The statute contains a list of nine factors that courts must consider to determine whether someone had bad faith intent to profit. One of the relevant factors is whether the domain name holder, the alleged cybersquatter, had a “bonafide non-commercial or fair use of the mark in a site accessible under the domain name.”

Many commentators have criticized the use of the anti-cybersquatting law to cover true gripe sites developed not to profit but to release critical consumer commentary. For example, law professor Hannibal Travis writes in a 2005 article in the Virginia Journal of Law and Technology that “trademark rights should be limited to policing commercial competition, rather than non-commercial Internet speech.”

Opponents argue that the government may not prohibit free speech simply because the ideas expressed are objectionable. Cultural and social change would be strangled if protest were limited to issues with which the majority agreed. This principle is not dependent on the medium of expression. Burning the flag is a means of protected speech as surely as picketing, printing leaflets or shouting on a street corner.

Absolutely, to both. Uncompensated blogging is exempted from any Federal Election Commission regulation in effect today.

Yes, the U.S. Supreme Court ruled in Reno v. ACLU (1997) that speech on the Internet receives the highest level of First Amendment protection. The Supreme Court explained that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”

Freedom of the Press (39)

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A retraction statute is a law that allows a defamation plaintiff to retract, or take back, a defamatory statement. Retraction statutes vary considerably from state to state in terms of their coverage and net effect. Under many statutes, a plaintiff has to request a retraction within a certain time frame. Then, the defendant must comply in a certain time frame. In many states, if a defendant issues a proper retraction, the defendant can reduce (but not eliminate) the damages they will have to pay. For example, in Tennessee, if a defendant issues a proper retraction, the defendant cannot be held liable for punitive damages. (Punitive damages are damages designed to punish the wrongdoer; they are controversial in some circles, because they go beyond compensatory damages, which are damages designed to compensate the plaintiff for wrongdoing.)

Broadcasters long have maintained that the tools of their trade — cameras and microphones — can be used to cover trials with no more disruption than the pens, notebooks, tape recorders and other materials used by print reporters and sketch artists. Most courts, however, have not been persuaded by this argument. In addition, most courts have taken the view that, as long as television reporters are allowed into the courtroom, they have the same access as print reporters.

That is a difficult question. Certainly, public employers have authority to prohibit employees from writing their blogs on employer time. The trickier question is whether a public employee can be disciplined for expression created on his or her own time. One theory is that since the expression was created off-duty, then the employer has no control over such content. A key factor could be whether the expression causes a disruption at the workplace. A few courts, for instance, have disciplined employees for racist comments they have made off-duty. This is a developing area of the law that merits close attention.

Truth is an absolute defense to libel claims, because one of the elements that must be proven in a defamation suit is falsity of the statement. If a statement is true, it cannot be false, and therefore, there is no prima facie case of defamation. There are numerous jurisdictions (including Florida) that have adopted the substantial-truth doctrine, which offers protection to a defendant of a defamation claim, as long as the “gist” of the story is true.

In the 1964 ruling New York Times v. Sullivan, the U.S. Supreme Court held that the First Amendment protects the publication of all statements regarding public officials unless the statement was made with actual malice — “with knowledge of its falsity or with reckless disregard of whether it was true or false.” The Court set a new standard by requiring that a public-official defamation plaintiff show evidence of actual malice by clear and convincing evidence. If the plaintiff is a private person, then only negligence needs to be proven, assuming the defamatory statement was false. However, if the private person wants to recover punitive damages, she must show that actual malice existed, as well.

Assuming that sidebar conferences and meetings in chambers are not being used to circumvent hearings that should be held in open court, the right of access does not extend to such discussions. Courts that have considered this issue have denied access on the grounds that there is no historical tradition of access to these portions of a trial. These discussions, however, almost always are recorded by the court reporter, and many courts, if asked, will release transcripts of the discussions after the trial.

Yes, newspapers do have a First Amendment right to refuse letters to the editor and ads. Since they are privately owned entities whose editors have editorial control, they are free to promote whatever political, social or economic view they wish.

The U.S. Supreme Court addressed the issue of editorial control and freedom of the press in 1974 in the case Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241. This case concerned a Florida political candidate who brought suit against The Miami Herald pursuant to the state’s “right-to-reply” statute after the paper refused to print the candidate’s reply to editorials critical of him. The statute in question required a newspaper to provide equal space to a political candidate to reply to any criticism of the candidate’s personal character or official record printed by the newspaper. The Supreme Court found the statute to be unconstitutional in that it violated the First Amendment right to a free press.

The Court wrote:

“A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

 

Freedom of Religion (89)

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A literature elective in the Bible would focus on the Bible as a literary text. This might include the Bible as literature and the Bible in literature. A primary goal of the course would be basic biblical literacy — a grasp of the language, major narratives, symbols and characters of the Bible. The course might also explore the influence of the Bible in classic and contemporary poems, plays and novels.

Of course, the Bible is not simply literature — for a number of religious traditions it is scripture. A “Bible Literature” course, therefore, could also include some discussion of how various religious traditions understand the text. This would require that literature teachers be adequately prepared to address in an academic and objective manner the relevant, major religious readings of the text.

No. In Braunfeld v. Brown (1961), the Supreme Court held that observance of a Sabbath was an individual’s choice, and that a person was not discriminated against or disadvantaged by the state for its decision to require the closing of businesses on a day other than that individual’s Sabbath. States may choose to allow exemptions for certain individuals, but they may not be required to do so.

No, not unless the school has a legitimate civil or secular purpose for limiting activities; it may not curtain programs only to accommodate a particular religious group. Though the U.S. Supreme Court has not ruled directly on this issue, causing some ambiguity, the Court has heard many cases concerning the First Amendment’s establishment clause. From one of those cases came the Lemon test used by the courts to determine if a law runs contrary to the establishment clause. The secular-purpose standard mentioned above is one part of this test, which the Court developed in 1971 in deciding the case Lemon v. Kurtzman. The Lemon test has three parts; first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster an excessive government entanglement with religion. So, for example, if school officials could show that there would be little or no participation in a school activity on a given night due to some religious observance or activity, causing the school to waste school funds, they would probably withstand a constitutional challenge.

Title 45, Part 87, Section 2, Subsection C of the Code of Federal Regulations states that “if an organization conducts such activities, the activities must be offered separately, in time or location, from the programs or services funded with direct financial assistance from the [government], and participation must be voluntary for beneficiaries of the programs or services funded with such assistance.”

Public schools may cooperate with mentoring projects run by religious institutions provided that:

Other community organizations are given an equal opportunity and are subject to the same secular selection criteria to operate such programs in partnership with the schools.

Referrals are made without regard to a student’s religious beliefs or lack of them.

Participation in the program is not conditioned on mandatory participation, or refusal to participate, in religious programs operated by a religious institution.

At no time do school officials encourage or discourage student participation in the religious programs of religious institutions.

No Supreme Court ruling explicitly establishes a position on religious exemptions to state-compelled vaccination. However, it is clear from the Court’s establishment-clause rulings that it is unlikely for all such exemptions to be found in violation of the First Amendment. What is less clear is whether or not the Court would find the free-exercise clause to mandate the inclusion of religious exemptions. For this reason, the status of religious exemptions to state-compelled vaccinations is still very much unclear. What the Court has found, however, is that a state has the authority to require its citizens to receive certain inoculations. This authority was established in 1905 in Jacobson v. Massachusetts, where the Court ruled that Massachusetts had the authority to require its citizens to be inoculated against smallpox.

Freedom of Assembly (13)

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This freedom protects the right of people to meet and publicly support a cause or message. It also protects the right of people not to be affiliated with certain messages or ideas. For example, the government cannot force expressive associations to accept unwanted members who would impair the effectiveness of the group. Nor can the government force people to support undesirable causes through required fees or dues as part of belonging to a group.

The movement drew upon several First Amendment freedoms — primarily speech, assembly and petition — to protest racial injustice and promote racial equality. In addition, the U.S. Supreme Court strengthened these First Amendment freedoms through its rulings in court cases arising out of the civil rights movement.

In some cases, anti-abortion demonstrators physically obstruct and/or intimidate those entering and exiting abortion clinics. Legislatures and judges create and permit buffer zones to ensure that people can work safely at the clinics and that women have access to them.

Generally, no. The Bill of Rights provides protection for individual liberty from actions by government officials. This is called the state-action doctrine. Private property is not government-owned. Restrictions on individuals’ free-speech rights on private property do not involve state action.

However, a few states have interpreted their own state constitutions to provide even greater free-speech protection than the federal Constitution offers. For example, the New Jersey Supreme Court has ruled that individuals have free-speech rights at privately owned shopping malls. Most state supreme courts that have examined the issue have disagreed. In April 2002, the Iowa Supreme Court refused to extend its definition of public property to include large, privately owned shopping malls.

A 2010 case, Snyder v. Phelps, involved whether a verdict assessing damages against the Westboro Baptist Church for a protest causing emotional distress to a soldier’s family violates the First Amendment.

In a somewhat related case, the Court in Frisby v. Schultz (1988) upheld a Wisconsin city ordinance banning picketing in front of private residences. “The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way,” Justice Sandra Day O’Connor wrote for the Court. The Court has also decided a series of cases involving limitations on abortion protesters outside clinics. For example, in Hill v. Colorado (2001), a divided Court (6-3) upheld a Colorado law that imposed an 8-foot floating buffer zone between protesters and those entering and leaving abortion facilities.

 

A law discriminates on the basis of viewpoint if it singles out a specific point of view for regulation. Consider a protest at a military funeral in which demonstrators denigrated the soldier and offended family members. If government officials punished that protest but allowed a demonstration praising the deceased, a serious charge of viewpoint discrimination could be leveled, because only protesters advocating a specific type of message were targeted.

Freedom to Petition (9)

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No, parties can attempt to file such suits, but the First Amendment’s petition clause guarantees the right of all interested parties to attempt to enlist the government on their side of an issue or dispute. The vast majority of the case law and commentary — both popular and scholarly — supports that right, and suggests that the remedy for dissatisfaction with the statements of another party is more speech directed toward government, not more litigation.

Lobbyists try to persuade government officials either to support or oppose various policy issues. Therefore, lobbying can be considered a form of petitioning the government for redress of grievances, subject to protection under the First Amendment’s petition clause. Although there has not been a great deal of judicial analysis on First Amendment protections afforded to lobbying, the courts have carved out several parameters. First, the petition clause does not grant a lobbyist the absolute right to speak to a government official, nor does it grant a lobbyist the right to a hearing based on his or her grievances. In addition, the clause does not create an obligation for a government official to take action in response to a grievance. Finally, any statement made while a lobbyist petitions a government official does not receive greater protection than any other expression protected by the First Amendment.

A libel suit, whether involving online or off-line speech, is one of the ways a SLAPP suit could be disguised; anti-SLAPP laws would apply. However, not all libel suits are SLAPP suits. Anti-SLAPP laws would apply only if it were found that a suit was filed in response to or in retaliation for citizen communications with government entities or employees, or for speech to bring attention to an issue of public interest or concern.

In 2001, U.S. District Judge David O. Carter determined that California’s anti-SLAPP statute does apply to cyber-SLAPPs. (See Global Telemedia International Inc. v. Doe et al., 132 F. Supp. 2d 1261 (C.D. Cal. 2001))

In 2003, the Massachusetts Appeals Court cited that state’s anti-SLAPP statute in throwing out a libel lawsuit against a website operator whose posted statements suggested a town official was a Nazi. (See MacDonald v. Paton, 57 Mass.App.Ct. 290 (2003) and “State appeals court rules online libel suit was really SLAPP.”)

Other state anti-SLAPP statutes may also apply to online libel suits. See “Anti-SLAPP statutes: state summary” for a state-by-state list.

No. The right to such legal resources in prison falls under due process.

Historically, a petition was a written request stating a grievance and requesting relief from a ruling authority such as a king. In modern America, petitioning embraces a range of expressive activities designed to influence public officials through legal, nonviolent means.

The right to petition reaches back at least to the Magna Carta in 1215. The English Declaration of Rights in 1689 confirmed that subjects were entitled to petition the king without fear of prosecution.

Students (4)

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It depends. If you attend a private school, the First Amendment will not protect you from any restrictions your school places on your right to protest. (The First Amendment prevents the government from punishing you for your speech. It doesn’t prevent a private organization for punishing you for your speech.)

If you attend a public school, you do have First Amendment rights, even at school. However, your rights are more limited than the rights of adults. Your school can punish you for taking part in a protest if it causes substantial disruption of school activities, or if it invades the rights of others.

This standard was established by the Supreme Court in a case called Tinker v. Des Moines Independent Community School District. The students in that case wore black armbands to school to protest the Vietnam War, and were suspended for refusing to take them off. The Supreme Court found that their First Amendment rights had been violated, because the armbands were considered a non-disruptive expression of their political point of view.

You may decide that you are willing to incur those penalties, but remember to consider alternative methods of advocacy and protest as well.  Sometimes civil disobedience–challenging the rules on matters of conscience and policy–is justifiable.  But sometimes there are several different ways to achieve the same goal.

This is may be a fire code violation–contact the proper authorities if you are concerned.

You may not be able to vote–but you have the First Amendment rights to speak, assemble, and petition.

Organizing marches and rallies can raise public awareness for your cause. Doing so off-campus and outside of school hours will be protected by the First Amendment.  Reach out and collaborate with as many people as possible–parents, teachers, school administrators, and members of your community–in order to have the greatest possible impact.

The right to petition means the right to ask for the laws that you want and speak out against the ones that you don’t want.  Contact your elected officials and tell them what you think.   Letters, phone calls, and personal interactions at town hall meetings have more of an impact than emails and tweets.  Contact your Senators and members of Congress, since they’re elected to serve you.  Don’t forget that state and local officials also make laws that impact you.  The My Reps website allows you to find and contact your federal, state, county, and local elected officials.  This guide by  former Congressional staffer Emily Ellsworth contains some very helpful tips on what you should say and do.

Parents (1)

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First, you may want to reach out to the school administrators and/or the school board and make your own voice heard on how you feel about this policy.

In giving advice or instructions to your children, you should consider the potential penalties but also discuss the underlying issues behind the walk-out.  You may wish to help your child with alternative forms of activism–for instance, by contacting your legislators on their behalf.  (After all, you have a vote.)

This could also be an opportunity to work collectively with other parents and your school leaders to organize a community discussion about the political issues, and also the on the the larger civic lessons surrounding free speech, protest, and representative democracy.

Teachers (1)

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If you’re caught between students motivated to join in protests, marches or other kinds of activities that are under the general heading of “free expression” [that is actual speech or expressive conduct] and your administration’s view of such actions as disruptive and therefore prohibited, perhaps you can strike a compromise between these groups  – a task that teachers’ lounge chatter daily confirms. How about leading your students in discussion about the history of protest in America, or the explore the various sides of what Supreme Court justices wrote in the “Tinker” court case.

While the 7-2 majority on the court supported student free speech rights – with some caveats – one justice wrote that the decision would usher in an entirely new era of “permissiveness” that it seems would wreck American public schools. To engage your students in a discussion, you can find review the basic information about the case and use this discussion guide from Newseum Education.

School Administrators (1)

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You first face the decision of whether to forbid the walk-out at all or to simply deal with the disruption caused by a walk-out.  (This decision might depend on whether you are considering the disruption caused by a 17-minute walkout versus that of an all-day walkout).  You then face the decision of whether or not to punish the participants.  Note that a punishment must be proportional to the misconduct committed.  Furthermore, if you decide to mark truant the students who participate in a walk-out, keep in mind that the punishment for them cannot be any more severe than the punishment for students who are truant for another reason.

Simply locking students into their classrooms in order to keep them from leaving may well be a fire code violation. Such a “lockdown” lacks the urgent “true threat” justification that a court might accept with regard to an active, dangerous incident in your building or near your location.

You should also consider that there may be another approach altogether. Given that we live in an age where there is much concern that young people don’t understand the Constitution or support free speech, punishing them for exercising it, even if the even if the Tinker decision gives school administrators that discretion, seems counterproductive. In the words of law professor Erwin Chemerinsky, “Schools cannot teach the importance of the First Amendment and simultaneously not follow it.”

This could be a teaching moment for your students and your community.  In cooperation with students, parents, and teachers, you may wish to organize a town hall meeting in which all sides surrounding the political issue or debate are head.  Newseum Ed’s Teaching Controversial Topics instruction guide provides tools and tips for educators on leading classroom conversations about sensitive topics.  

You can also use this as an opportunity to educate your students about how the First Amendment works and how far their rights extend.  You can start by introducing students to what the limits of free speech are, both inside of school and out of it, with discussion materials from Newseum Ed about what counts as a violation of the First Amendment and what you can and can’t say in school.

 

 

 

 

Lawyers (8)

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Absolutely not.  U.S. District Court Judge Rodney Sippel expressed this well years ago in Beussink v. Woodland IV School District (E.D. Mo. 1998), writing “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker.

In a case out of Tennessee, Giles County public school officials contended that a t-shirt with pro-gay and lesbian themes would be disruptive to the school. A review federal district court judge disagreed in Young v. Giles County (M.D. Tenn. 2015), writing that “[m]erely invoking the word ‘disruption’ falls far short of the showing that Tinker requires.”

No. The Court in Tinker declared that “undifferitienated fear or apprehension of disturbance is not enough to over the right to freedom of expression.”   School officials must have some evidence or a reasoned judgment that speech will cause problems before they engage in blanket censorship.

The Supreme Court in Tinker developed a test for evaluating whether school officials can censor student expression without violating the First Amendment.   The test is known as the “substantial disruption” test.  Under this test, school officials may prohibit student speech if they can reasonably forecast that the student speech will cause a material interference or substantial disruption of school activities or invade the rights of others.

Yes, students do possess First Amendment rights at school.   The U.S. Supreme Court famously wrote in Tinker v. Des Moines Independent Community School District (1969) that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  However, the Court cautioned that students’ rights must be considered “in light of the special characteristics of the school environment.”

That is an excellent question.  The determination of what constitutes a “substantial disruption” is decided on a case-by-case basis.  The interruption of classes, threats to teachers, racially harassing conduct and significant race-based tension, fights or violent behavior on school grounds, the flooding of angry calls from parents, the canceling of school events, and emotional distress suffered by teachers have all been considered substantial disruptions within the meaning of the Tinker standard.

No, courts have stated that school officials do not have to wait for an actual disruption or riot.  The 9th U.S. Circuit Court of Appeals explained in Karp v. Becken (1973): “The First Amendment does not require school officials to wait until disruption actually occurs before they may act.”

This where the “reasonable forecast” part of the standard comes in play.   In Dodd v. Rambis (S.D. 1981), a federal district court judge reasoned that students’ distribution of leaflets urging fellow students to engage in another student walkout was substantially disruptive to school activities.  The judge explained: “The First Amendment does not require school officials to forestall action until disruption of the educational system actually occurs. Indeed, this is the very essence of the forecast rule.”

For example, in many cases involving Confederate flag garb, courts have reasoned that a significant amount of race-based tension at the school is enough to satisfy the “reasonable forecast of substantial” disruption standard.