Yes, it does. If the student uses school computers to create his material, school officials have jurisdiction and more legal authority to regulate the expression. School officials would likely argue that they could censor such expression as long as they had a reasonable educational reason for doing so under the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier. When students use school computers, they are also subject to the school’s acceptable-use Internet policy. Most schools have policies that set limits on students’ Internet usage.
Schools have great latitude to control the speech that occurs in a classroom and, in that setting, can probably prohibit the distribution of student publications altogether. Similarly, schools may impose any reasonable constraint on student speech in a school-sponsored publication such as the school newspaper.
Although different scholars view unprotected speech in different ways, there are basically nine categories:
Some experts also would add treason, if committed verbally, to that list. Plagiarism of copyrighted material is also not protected.
Many students are able to express themselves through what they wear to school; but, more and more teenagers are facing restrictions as school boards across the country adopt more stringent policies.
Some states have passed laws empowering school boards to regulate student dress. For instance, Tennessee has a law allowing school boards to pass policies prohibiting the wearing of “gang-related apparel.” In 2001, Arkansas passed a law requiring school boards to create an “advisory committee” of parents and students to consider whether their local school district should require uniforms. Arizona has a law giving local school boards the power to adopt uniform policies. New Jersey passed a law saying that school boards may adopt a dress code or uniform policy if requested by the principal, staff and teachers, and “if the board determines that the policy will enhance the school learning environment.”
Many courts have upheld dress-code and uniform policies as a reasonable way to instill discipline and create a positive educational environment. Federal appeals courts have recently upheld uniform policies in Texas and Louisiana. The courts determined that the policies were not imposed to suppress students’ freedom of expression but to further reasonable educational objectives.
The Supreme Court has not decided a case involving a challenge to a dress-code or uniform policy.
School officials cannot pull books off library shelves simply because they dislike the ideas in those books. In Board of Education v. Pico, the Supreme Court ruled that school officials in New York violated the First Amendment by removing several books from junior high school library shelves for being too controversial.
The Court said the First Amendment protects students’ rights to receive information and ideas and that the principal place for such information is the library.
However, in Pico, the Supreme Court also said that school officials could remove books from library shelves if they were “pervasively vulgar.” The Court noted that its decision did not involve school officials’ control over the curriculum or even the acquisition of books for school libraries.
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.
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.”
Yes, it does. If the student uses school computers to create his material, school officials have jurisdiction and more legal authority to regulate the expression. School officials would likely argue that they could censor such expression as long as they had a reasonable educational reason for doing so under the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier. When students use school computers, they are also subject to the school’s acceptable-use Internet policy. Most schools have policies that set limits on students’ Internet usage.
It depends on the court and the context. If the student’s speech is deemed to be school-sponsored or endorsed by the school, the student prayer would violate the establishment clause. Some courts have determined that purely student-initiated speech would not run afoul of the establishment clause.
Two federal appeals court decisions show how the courts are divided on this issue.
In October 2000, the 9th U.S. Circuit Court of Appeals rejected a First Amendment challenge brought by students in California who were denied the right to make a religious speech at graduation. The court determined that school district officials reasonably prevented the student’s religious speech to avoid violating the establishment clause. Additionally, in Cole v. Oroville Union High School, the court determined that even “if the graduation ceremony was a public or limited public forum, the District’s refusal to allow the students to deliver a sectarian speech or prayer as part of the graduation was necessary to avoid violating the Establishment Clause.”
However, in May 2001, the 11th U.S. Circuit Court of Appeals refused to strike down a Florida school district policy allowing an elected student to deliver an unrestricted message at graduation. The court in Adler v. Duval County School Board determined that “it is impossible to say that … [the policy] on its face violates the Establishment Clause without effectively banning all religious speech at school graduations, no matter how private the message or how divorced the content of the message may be from any state review, let alone censorship.”
Public school students possess a range of free-expression rights under the First Amendment. Students can speak, write articles, assemble to form groups and even petition school officials on issues. The U.S. Supreme Court has said that students “do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.”
There is a fundamental distinction between public and private school students under the First Amendment. The First Amendment and the other provisions of the Bill of Rights limit the government from infringing on an individual’s rights. Public school officials act as part of the government and are called state actors. As such, they must act according to the principles in the Bill of Rights. Private schools, however, aren’t arms of the government. Therefore, the First Amendment does not provide protection for students at private schools.
Though public school students do possess First Amendment freedoms, the courts allow school officials to regulate certain types of student expression. For example, school officials may prohibit speech that substantially disrupts the school environment or that invades the rights of others. Many courts have held that school officials can restrict student speech that is lewd.
Many state constitutions contain provisions safeguarding free expression. Some state Supreme Courts have interpreted their constitutions to provide greater protection than the federal Constitution. In addition, a few states have adopted laws providing greater protection for freedom of speech.
The U.S. Supreme Court has decided several cases involving the First Amendment rights of public school students, but the most often cited are Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988).
In Tinker, the Supreme Court said that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court ruled that Iowa public school officials violated the First Amendment rights of several students by suspending them for wearing black armbands to school.
The court noted that the students’ wearing of armbands to protest U.S. involvement in Vietnam was a form of symbolic speech “akin to pure speech.” The school officials tried to justify their actions, saying that the armbands would disrupt the school environment.
But, the Supreme Court said that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” School officials cannot silence student speech simply because they dislike it or it is controversial or unpopular. Rather, according to the court, school officials must reasonably forecast that student speech will cause a “substantial disruption” or “material interference” with school activities or “invade the rights of others” before they can censor student expression. The Tinker case is considered the high-water mark for student First Amendment rights.
In the 1980s, a more conservative Supreme Court cut back on students’ free-expression rights in Fraser and Hazelwood. In Fraser, school officials suspended a high school student for giving a lewd speech before the student assembly. Even though Matthew Fraser’s speech was part of a student-government campaign, the high court distinguished the sexual nature of the address from the political speech in Tinker.
“Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse,” the court wrote in its 1986 decision. “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”
Two years later, the Supreme Court further restricted student free-expression rights in Hazelwood. In that 1988 decision, several students sued after a Missouri high school principal censored two articles in the school newspaper. The articles, written by students, dealt with divorce and teen pregnancy. The principal said he thought the subject matter was inappropriate for some of the younger students.
The students argued that the principal violated their First Amendment rights because he did not meet the Tinker standard — he did not show the articles would lead to a substantial disruption. Instead of examining the case under Tinker, however, the Supreme Court developed a new standard for what it termed school-sponsored speech.
Under this standard, school officials can regulate school-sponsored student expression, as long as the officials’ actions “are reasonably related to a legitimate pedagogical interest.” In plain English, this means school officials must show that they have a reasonable educational reason for their actions. The court broadly defined the school’s authority to regulate school-sponsored expression, writing that school officials could censor material which would “associate the school with anything other than neutrality on matters of political controversy.”
It depends. If the school has by policy or practice turned the school-sponsored publication into a public forum, or a place traditionally open to the free exchange of ideas, then the school has less authority to censor content. However, most school newspapers are not public forums, and because of a 1988 Supreme Court decision, school officials generally have broad leeway to censor school-sponsored publications.
In Hazelwood School District v. Kuhlmeier, the high court ruled that school officials can censor school-sponsored publications if their decision is “reasonably related to a legitimate pedagogical purpose.” This means school officials must show that they have a reasonable educational reason for censoring the material.
The high court gave several examples of material that could be censored based on a reasonable educational purpose, including material that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.”
The court went so far as to say that under the Hazelwood standard, school officials could censor school-sponsored materials that would “associate the school with anything other than neutrality on matters of political controversy.”
Student advocates decried the Hazelwood decision as blatant censorship that would lead to a drastic reduction in students’ First Amendment rights. For this reason, several states passed so-called “anti-Hazelwood laws” that grant student journalists more protection. Arkansas, Colorado, Iowa, Kansas, Massachusetts, and Oregon passed such laws after the decision. (California already had a law protecting student journalists.)
Generally, schools may not censor underground student newspapers, because those papers are not school-sponsored. If the underground paper is not distributed on campus, school officials have no legal authority to regulate it.
Even if the papers are distributed on school grounds, the First Amendment imposes limitations on school officials’ ability to censor these publications because of content. Public school officials, however, may impose reasonable time, place and manner restrictions on the distribution of underground newspapers.
There are exceptions to the general rule of “no censorship.” If school officials can show that the publication caused or would likely cause a substantial disruption of school activities, they may be able to limit or even stop distribution. Or if school officials could show that the publication contained true threats, they may be able to restrict distribution.
A pressing issue regarding underground student newspapers is whether school officials have the power to require students to submit the papers for review before they can be distributed on school grounds. Courts are divided on whether such prior review policies violate students’ First Amendment rights, and the Supreme Court has not considered the issue.
Courts are much divided on this issue. Among the federal appeals courts, the 1st, 2nd, 4th, 7th and 8th Circuits have seemed receptive to students’ claims of free-expression rights concerning their hair. But the 3rd, 5th, 6th, 9th and 10th Circuits have seemed unreceptive.
Many cases involving student hair today deal not with length but color. For example, a high school student from Virginia sued his school district in federal court after school officials suspended him for having blue hair. A federal judge reinstated the student, finding a violation of his constitutional rights.
Generally, courts that have found a constitutional issue have ruled along similar lines, claiming that a student’s choice of hair color and style represents either a First Amendment free-expression issue or a 14th Amendment liberty or equal-protection interest. Some courts have even pointed out that regulating students’ hair has a more permanent effect than regulating their dress, because outside of school, they can change their clothes more readily than their hairstyles or color.
Conversely, the courts that have sided with school districts have generally ruled that students’ wearing of long hair “does not rise to the dignity of a protectable constitutional issue.”
Either way, different courts have simply come to different legal conclusions. As a result, students’ rights in this regard largely depend on where they live.
Many books have been subject to censorship, although most are targeted for (a) vulgar or sexually explicit language; (b) “racist” language; (c) gay and lesbian themes; and/or (d) discussions of witchcraft and the occult.
The American Library Association’s Office of Intellectual Freedom keeps track of efforts to censor books and has published a list, “The 100 Most Frequently Challenged Books of 1990-2000.” Books new and old make up the list, from the 19th century classic “The Adventures of Huckleberry Finn,” to the critically acclaimed “I Know Why the Caged Bird Sings,” to the current-day best-selling Harry Potter series.
Maya Angelou’s “I Know Why the Caged Bird Sings” receives complaints for a rape scene and for being perceived by some as “anti-white.” Mark Twain’s “Huckleberry Finn” has been subject to censorship for language deemed demeaning to African-Americans. J.K. Rowling’s hugely popular Harry Potter series draws the ire of some who say it celebrates witchcraft.
School districts should develop policies on how to handle challenges to books and how to ensure that decisions regarding removal of books from the library or the curriculum respect the Constitution and reflect sound educational policy. School officials must also ensure that a book is not removed simply because a concerned parent or special-interest group dislikes its content.
No, a public school may not pick and choose which student groups it wishes to allow. A school would violate the First Amendment if it censored certain student groups on the basis of their viewpoints.
In 1984, Congress passed the Equal Access Act to prohibit discrimination against certain student groups based on their speech. The act was passed to prevent discrimination against student religious groups.
In its 1990 decision Westside Community Board of Education v. Mergens, the Supreme Court ruled that a Nebraska high school violated the Equal Access Act by denying recognition of a student Christian club when it allowed many other noncurriculum student clubs.
The Equal Access Act provides that a “public secondary school has a limited open forum whenever such school grants an offering or an opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time.”
The act forbids public secondary schools that receive federal funds from denying “equal access” to student groups based on the “religious, political, philosophical, or other content of the speech.” This means that, as the Mergens case demonstrated, a school cannot allow the formation of a chess club and at the same time deny the formation of a Bible club.
Unfortunately, some school districts that do not wish to recognize certain student groups have taken drastic action in order to avoid violating the Equal Access Act. These districts have simply prohibited all student extracurricular groups. A school district in Utah banned all student groups to avoid recognizing a gay-and-lesbian group. Meanwhile, a school district in California banned all student groups in order to avoid recognizing a Christian group.
(For more information on student clubs, see Religious clubs FAQs in the Religious liberty in public schools section.)
No, public school students may not be compelled to recite the Pledge of Allegiance. In its 1943 decision West Virginia Board of Education v. Barnette, the U.S. Supreme Court determined that the First Amendment protects a student’s right not to engage in certain speech. The First Amendment generally prohibits the government from punishing people for engaging in certain speech. In Barnette, the high court extended the reach of the First Amendment to also prohibit the government from compelling speech.
The high court determined that a group of Jehovah’s Witnesses, who objected to the flag salute and mandatory pledge recitation for religious reasons, could not be forced to participate.
In oft-quoted language, Justice Robert Jackson wrote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
No, you do not have to stand up and take off your hat during the Pledge of Allegiance. In the 1943 case West Virginia Board of Education v. Barnette, the Supreme Court said students who objected to the flag salute and mandatory Pledge recitation for religious reasons could not be forced to participate.
Although Barnette pertains to reciting the Pledge, in the case Lipp v. Morris (1978) the 3rd U.S. Circuit Court of Appeals struck down a New Jersey statute requiring a student to stand during the Pledge as unconstitutional.
As explored in Lipp and Barnette, a fundamental constitutional right is that no government official at any level can force conduct from any citizen regarding an expression of religion, politics, nationalism, or matter of opinion.
No, two courts have held that students cannot be forced to stand while other students recite the Pledge of Allegiance. In Goetz v. Ansell (1973) and Lipp v. Morris (1978), the 2nd and 3rd U.S. Circuit Court of Appeals, respectively, ruled that public school students could not be forced to stand silently while other students recited the Pledge. The 2nd Circuit in Goetz explained: “The alternative offered plaintiff of standing in silence is an act that cannot be compelled over his deeply held convictions. It can no more be required than the Pledge itself.”
Additionally, the 11th Circuit in July 2008 (Frazier v. Winn) found that a “standing at attention” clause in Florida law violated the First Amendment. However, the panel left the rest of the state statute intact, refusing to strike down part of it that allows students to be excused from reciting the Ppledge only by written request of their parent. In October 2009, the U.S. Supreme Court refused to hear an appeal in the case, as had the full 11th Circuit earlier.
Yes, students have the right to pray and discuss religion in school. Public misperception has persisted on this topic since the U.S. Supreme court struck down school-sponsored prayer in the early 1960s. In those decisions, the high court ruled that the establishment clause does prohibit schools from allowing or engaging in school-sponsored prayer or encouraging students to pray.
But the free-exercise clause protects the rights of students to pray on their own time. In fact, singling out student religious speech for punishment would indicate hostility toward religion and violate the basic First Amendment principle that the government may not punish a particular viewpoint.
This does not mean that students have an unfettered right to speak on religious subjects. Students can be punished for interrupting class time for any type of speech. Also, school officials can make sure that students are not speaking to a captive audience or harassing others by overzealously advocating their religious beliefs.
An offended person’s decision not to speak is hardly a reason to suppress the speech of others. Those who find an idea, epithet, literary work or other form of expression offensive can oppose, counteract and perhaps refute it with further speech — not by banning the speech deemed to be offensive.
As Justice Louis Brandeis said in a famous quote, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
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.”
Preserving the speech rights of students and maintaining the integrity of public education are not mutually exclusive. Schools should model First Amendment principles by encouraging and supporting the rights of students to express their ideas in writing. On the other hand, students should not expect to have unfettered access to their classmates and should be prepared to abide by reasonable time, place and manner restrictions. Schools must continue to maintain order, discipline and the educational mission of the school as they seek to accommodate the rights of students.
Why shouldn’t public colleges be allowed some say in the type of research done by their professors or the funding sources if a line of inquiry might negatively affect the school?
To allow colleges to restrict a field of research, either by censuring a professor or by limiting funding, would be to suggest that no academic advances should be made in that field. Such an attitude would seem to run contrary to the purpose of institutions of higher education. Where a college blocks a professor’s efforts to research a particular issue, the implication is that the censors fear what might be found.
As government entities, public universities are just as precluded by West Virginia v. Barnette from deciding “what shall be orthodox” as Congress is. That means that although a school administration may question the methodology or classroom performance of a professor, it cannot prohibit a field of inquiry simply because the subject is controversial.
First Amendment advocates say an entire campus should be a free-speech zone because the purpose of a public college or university is to allow and to explore all points of view. Free-speech supporters thus express suspicion that designating zones is a way of limiting and discouraging free speech.
Yes and no. Public universities may not completely prevent students from independently printing and distributing written materials on their campus, but they may impose reasonable time, place, and manner restrictions on their distribution. For example, a school may establish certain places on campus as the proper locations for those wishing to pass out written materials, or they may prohibit distribution at times where it could reasonably block the passage of students to and from classes. But the open spaces of a college campus are generally presumed to be an open forum for the purpose of student expression, including written expression.
Many college campuses continue to deal with the problem of students’ confiscating newspapers to prevent the circulation of stories or ideas that they find offensive. Every year, cases are reported where entire runs of a publication are stolen, depriving the campus of the opportunity to even consider what was published. Unfortunately, very few of these instances have resulted in meaningful punishment of the offenders.
The problem in punishing those who steal papers is twofold. From the legal perspective, it is difficult to successfully prosecute the perpetrators for theft, as the newspapers are distributed free to whoever chooses to pick one (or 1,000) up. Prosecutors in a handful of cases have used charges of criminal mischief and vandalism, in addition to the more conventional theft charges, to secure punishment for those responsible for stealing papers. But the vast majority of such incidents go unheard by courts of law. Some universities have been accused of downplaying the importance of mass newspaper thefts out of fear of further offending various groups.
The Supreme Court spoke to this issue in Brandenburg v. Ohio (1969), in which it held that even those statements (or student groups, in this case) that advocate violation of the law are protected speech under the First Amendment unless they threaten “imminent lawless action.” This principle was tested recently by the 11th U.S. Circuit Court of Appeals in Gay Lesbian Bisexual Alliance v. Pryor, where the state of Alabama passed a statute that prevented state universities from recognizing or distributing funds to student groups that promoted lifestyles prohibited under the state’s sodomy laws. The court found that the GLBA did not promote “imminent lawless action,” and that any statute intended to restrict the group’s otherwise-protected advocacy of a nontraditional lifestyle was inherently unconstitutional.
Suppose a student is taking a drawing class. Part of it involves sketching a nude human body. If a student has a religious objection to observing or drawing unclothed models, he or she might ask to be exempted from that section of the class without damage to the course grade. Such an exemption may or may not be granted.
It stands to reason, under a doctrine established by the U.S. Supreme Court in its 1943 decision West Virginia v. Barnette, that no one may be compelled by a government actor to do something that will violate their conscience. Accordingly, it would seem that the same could be said for students who find religious or moral objections to certain practices normally required in a course of study — that they should be allowed to take on comparable tasks, modified to meet the requirements of their worldview.
A Mormon drama student at the University of Utah recently objected to “taking the Lord’s name in vain” and using “the f-word.” When she asked that she be allowed to change the words in class exercises and plays to which she was assigned, she was informed that her grade would suffer if she did so. In the resulting court case, the federal district court found that she could not exempt herself from the requirements of her studies and that if she desired to avoid those requirements, she had the option of choosing another major. The case has been appealed.
This is called a “heckler’s veto.” The problem with it is that, far from advancing understanding, it inhibits it. Freedom of speech was guaranteed in the First Amendment so that a full range of ideas would be available on matters of public interest. The Supreme Court’s interpretation of the First Amendment as it pertains to public college campuses over the past 80-90 years is derived in part from J.S. Mill’s essay, “On Liberty,” in which he asserted that:
“… the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
Students are not allowed to drown out the lectures of a professor in the classroom without disciplinary action, because doing so disrupts the school’s academic purpose. Guest speakers are allowed on campus in order to offer different and broader perspectives, thereby addressing the school’s purpose. So, student speech that would drown out a controversial guest therefore can be prohibited.
However, institutions ideally will not simply silence students wishing to protest against a campus speaker. They may restrict student protesters to an appropriate forum, thus allowing both exercises of free speech to occur.
The California Supreme Court addressed this issue in 1970 in the case of In Re Kay, 1 Cal.3d 930. “Audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment. For many citizens such participation in public meetings, whether supportive or critical of the speaker, may constitute the only manner in which they can express their views to a large number of people.”
The court continued: “‘Disturbances’ of meetings arise in a wide variety of forms; the modern techniques of the ‘politics of peaceful confrontation’ frequently result in a clash of ideological expressions which may, in many senses, ‘disturb’ a meeting. Without doubt petitioners’ conduct in the instant case, including clapping … was ‘closely akin to “pure speech”’” (quoting Tinker v. Des Moines Independent Community School District).
Particularly in situations involving illegal or unethical behavior, the press takes seriously its responsibility to keep the public informed. People want and need to know what is happening on public campuses, especially if they have children attending school or thinking of doing so. As with any important story, reporters will want to learn as much about the people involved or suspected of being involved so that they can assemble the uncontested facts into an accurate picture of the situation. This goal would be served by having access to some of the records protected by FERPA, because the information would help the reporters to understand that situation and the individuals who might be involved. Without access to the government-controlled educational records, pieces are left out of the puzzle.
Such a regulation would probably be OK, as long as the government applied it evenhandedly. On its face, this requirement appears reasonable and does not discriminate against speech on the basis of content or viewpoint.
It has to do with distinguishing between protected freedom of speech and speech that is not protected. Most of the new laws passed by states require that for online communications to be considered “stalking,” they must constitute harassment of a person that places the person in reasonable fear for his or her safety. Courts have upheld stalking legislation that deals with threats because the First Amendment does not protect true threats. But some of the measures go beyond punishing true threats and proscribe “annoying” speech.
Gripe sites are websites providing consumer commentary criticizing the business practices of certain companies. Many cybergriper sites contain parodies of their corporate targets. For example, a consumer who believes that “Business X” engages in unfair business practices might establish a website with the domain name “BusinessXsucks.com.”
The answer depends on several factors, including whether the gripe site is engaged in commercial use of the target’s trademarked business name, or whether the gripe site owner has bad-faith intent to profit from his or her site.
Businesses targeted by gripe sites have sued under both the Federal Trademark Dilution Act of 1996 and the Anti-Cybersquatting Law of 1998. If the gripe site is consumer commentary of a noncommercial nature, it is less likely to be violation of these federal laws, particularly the Federal Trademark Dilution Act.
Many commentators believe that gripe sites that do not engage in commerce are protected under the First Amendment. Some recent court decisions have upheld this viewpoint.
For example, in Taubman Co. v. Webfeats, the 6th U.S. Circuit Court of Appeals found that a gripe site was “purely an exhibition of Free Speech, and the Lanham Act (the major federal trademark law) is not invoked.” The appeals court explained: “We find that the domain name is a type of public expression, not different in scope than a billboard or a pulpit, and [the gripe site owner] has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.”
The law provides a cause of action for trademark owners if they can establish the following:
1. They own a famous mark (determined by eight factors listed in the law).
2. The defendant is making commercial use in interstate commerce of the plaintiff’s mark or trade name.
3. The defendant’s use of plaintiff’s mark occurred after the mark became famous.
4. The defendant’s use causes dilution of plaintiff’s mark by lessening the capacity of a famous mark to identify and distinguish goods or services.
The law exempts noncommercial use of trademarks. The 9th U.S. Circuit Court of Appeals explained in its 1998 decision in Bally Total Fitness Holding Corporation v. Faber that “commercial use is an essential element of any dilution claim.”
However, some courts appear to take a broad view of what constitutes commercial activity. For example, a federal district court in New York ruled in 1997 in Planned Parenthood Federation of America, Inc. v. Bucci that a radio host and anti-abortion activist who had a website with the domain name www.plannedparenthood.com engaged in commercial activity for several reasons. These include that fact that the radio host promoted his book on the site, solicited funds for his nonprofit political activism, and designed it to harm Planned Parenthood commercially. The court explained:
Finally, defendant’s use is commercial because of its effect on plaintiff’s activities. First, defendant has appropriated plaintiff’s mark in order to reach an audience of Internet users who want to reach plaintiff’s services and viewpoint, intercepting them and misleading them in an attempt to offer his own political message. Second, defendant’s appropriation not only provides Internet users with competing and directly opposing information, but also prevents those users from reaching plaintiff and its services and message. In that way, defendant’s use is classically competitive: he has taken plaintiff’s mark as his own in order to purvey his Internet services — his website — to an audience intending to access plaintiff’s services.
States take different approaches to allocating time for public comments at public meetings, and courts across the country have provided some guidance on this issue. Most states do not expressly require, via statutes or legal precedent, time for public participation in public meetings, although it has become a customary practice to allow individuals to speak. Often in the case of school board meetings, members of the public are required to provide notice, or to register with the board well before the meeting, to be allowed to make a comment.
The Florida Supreme Court has recognized that public comments in open meetings are important in maintaining an open government. The court has stated that government bodies “should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.” Board of Public Instruction of Broward County v. Doan, 224 So. 2d 693,699 (Fla. 1969). Furthermore, the Florida Code expressly provides that members of the public have a right to participate in local government meetings regarding land use, but the comment time can be regulated by the decision-making body. Fla. Stat. § 286.0115(2)(b).
California has a statute that requires public bodies to allow for public comments at meetings. Cal. Gov. Code § 54954.3(a). A California case provides legal precedent for when a public meeting is continued to a later date for some reason. In Chaffee v. San Francisco Library Commission, 115 Cal. Rptr. 3d 336 (Cal. App. 2004), a public meeting was continued to a later date after the meeting body lost its quorum to continue. A California citizen brought suit alleging that the state sunshine laws (or open-meeting laws) required public comments at every meeting of a public body, not just a comment section on each agenda. The California Court of Appeals in the 1st Appellate District held in favor of the public body by holding that public comments are mandated only once per agenda, not once per body meeting. Allowing for public comments at each meeting regarding the same meeting would cause a “surplusage,” the court said.
Some states, such as Wyoming, statutorily make it a right of a public body to prevent willful disruption of a meeting by removing anyone causing a disruption or by taking a recess. Wyo. Stat. § 16-4-406.
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.”
Local community standards are difficult to apply on the global medium of the Internet because Web publishers cannot limit access to their sites based on the geographic location of Internet users. For this reason, several U.S. Supreme Court justices expressed their discomfort with applying local standards in determining what material is harmful to minors under the now-defunct Child Online Protection Act (COPA) in Ashcroft v. ACLU (2002).
Justice Sandra Day O’Connor, for example, advocated the adoption of a “national standard for regulation for obscenity of the Internet.” Justice Stephen Breyer reasoned that COPA should be read to include a national standard. Other justices expressed concern about the notion of local community standards, as well.
The U.S. Supreme Court has acknowledged that the protection of minors is a compelling government interest. But, the Court has also ruled that protecting minors does not mean that the government has carte blanche to suppress the free-speech rights of adults and older minors. The problem with filters is that they block too much legitimate, constitutionally protected material. A federal court had ruled that less-restrictive alternatives to filtering exist, so that speech is not banned in such a broad swath. The Supreme Court, however, overturned that ruling.
No, not conclusively. One scholar who analyzed about 200 recent studies of media violence said none provided support for the existence of a cause-and-effect relationship between violent imagery and actual violence. Japanese and Canadian TV programming is more violent than American TV, but those societies have much lower violent-crime rates than the United States.
Courts have generally said that it cannot be restricted without a violation of the First Amendment protection of free speech.
Free-speech advocates warn that “voluntary” programs may seem to come from willing industry participants, but compliance is usually due to significant pressure from lawmakers.
No. Private galleries are private spaces, and gallery owners and curators can show what they like. An artist whose work is rejected by a private gallery cannot legally assert a First Amendment claim.
The U.S. Supreme Court set up a test for obscenity in its 1973 decision Miller v. California. The Court provided three “basic guidelines”:
These different guidelines are sometimes called the prurient-interest, patently offensive and serious-value prongs of the Miller test.
The U.S. Supreme Court has indicated that city licensing laws must contain some procedural safeguards in order to guard against censorship. In its 1990 decision FW/PBS v. City of Dallas, the high court said that a licensing scheme for adult businesses must contain two such safeguards:
The most commonly mentioned secondary effects with respect to adult businesses are decreased property values and increased crime. Government officials often argue that adult businesses will reduce the property values of surrounding areas and lead to greater crime. Many courts give a high level of deference to municipal officials when it comes to secondary effects.
However, some studies have actually contradicted the general assumptions that all adult businesses cause adverse secondary effects. For example, a study by the Fulton County (Ga.) police department showed fewer police calls made from adult businesses than from regular bars. Another city-commissioned study from Fulton County showed that property values increased around some so-called gentleman’s clubs.
No. But a city may enact reasonable zoning measures that relegate adult businesses to a certain area or areas of town. Similarly, a city may zone adult businesses by dispersing them throughout a city.
Cities may also pass restrictions that regulate how live entertainment is performed. For example, courts have allowed cities to require nude dancers to wear at least some clothing during their performances.
But a city may not completely prohibit adult entertainment. In its 1981 decision Schad v. Borough of Mount Ephraim, the U.S. Supreme Court ruled that a town in New Jersey could not ban live adult performance dancing within its borders. “By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments,” the high court wrote.
The Supreme Court distinguished between a zoning law that restricted the location of adult businesses and a law that completely prohibited certain types of expressive conduct.
No, telemarketers cannot call consumers before 8 a.m. or after 9 p.m. Telemarketers who do call after these times have violated two federal laws that overlap somewhat — the Telephone Consumer Protection Act, and the Telemarketing and Consumer Fraud and Abuse Prevention Act. Both laws empower either state officials or individuals to sue for abusive telemarketing practices. Complaints can also be filed with the Federal Communications Commission and the Federal Trade Commission.
Generally, yes. However, many states have passed laws regarding telephone harassment. In Tennessee, for example, telephone harassment is committed by one “who intentionally threatens by telephone … to take action known to be unlawful against any person, and by this action knowingly annoys or alarms the recipient” (T.C.A. § 39-17-308(a)(1)). The elements for telephone harassment must be proven beyond a reasonable doubt by the state. While the elements vary slightly from state to state, the prosecution generally must prove that the defendant placed the calls anonymously, repetitiously or at an inconvenient hour; the defendant had no legitimate purpose for contacting the victim; and the defendant’s action somehow alarmed or annoyed the victim.
When the government regulates news racks, it affects a fundamental delivery device by which publishers convey their informative products to the public. Many people purchase or pick up newspapers and commercial handbills from news racks. Racks provide an easy way for many people to obtain these publications. The U.S. Supreme Court has written that news racks “continue to play a significant role in the dissemination of protected speech.”
The FDA doesn’t have absolute control because, as a federal agency, it is bound by the dictates of the Constitution and the First Amendment. Generally, the content of labels is considered to be at least a form of commercial speech that merits a degree of First Amendment protection.
Many supporters feel that the flag is a unique symbol deserving of dignity and respect. To burn this object of veneration is akin to an “inarticulate grunt or roar” that is devoid of any meaningful speech, intended only to enrage others, and undeserving of free-speech protection. The supporters say that when so many other avenues exist for free expression, any burden on the First Amendment is too small to outweigh the desecration of the flag and the memories of the millions who have died for the liberty it represents.
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.
In 1991, Congress enacted the Telephone Consumer Protection Act. Part of this act made it unlawful to send unsolicited advertisements to a fax machine without the recipient’s prior permission. However, in 2005 the Junk Fax Prevention Act was signed into law. That act amended the TCPA to allow faxes to be sent to recipients, without prior consent, if there is an established business relationship.
An established business relationship is a prior or existing relationship formed by a voluntary two-way communication between the sender and the recipient. However, the JFPA also allows senders to fax those whose numbers they received from “a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution.” There is no time limit on this exception. So, if a fax number appeared on such a list 10 years ago and a sender obtains that list, they can send faxes to that number without being penalized. If a fax owner never put his or her fax number on any type of list that could be available to the public and has no business relationship with a sender, he or she can sue the sender of the unsolicited fax.
However, some states may have laws regulating faxes sent within their states that are more stringent than the JFPA.
The law was passed by the House of Representatives on Feb. 14, 2002, and by the Senate on March 20, then signed into law by President George W. Bush on March 27. In its final stages before passage, it was also known as the McCain-Feingold bill, named after main sponsors Sen. John McCain, R-Ariz., and Russ Feingold, D-Wis. Other key sponsors were Sens. Olympia Snowe, R-Maine, and James Jeffords, I-Vermont. In the House, Reps. Christopher Shays, R-Conn., and Martin Meehan, D-Mass., sponsored the legislation. The main provisions of the law, which took effect on Nov. 6, 2002, are (1) a ban on “soft money” donations to political parties by individuals, corporations and unions; (2) restrictions on “electioneering communications” — broadcast advertisements close to an election that mention specific candidates by name; and (3) an increase in the limits on donations individuals may make to candidates for federal office.
The Federal Election Commission in 1979 issued a regulation allowing political parties to raise funds for “party-building” efforts — such as voter registration drives and TV advertising. This “soft money” remains outside the normal rules that require reporting the source and amount of donations. It was originally justified as a way for parties to remain viable as entities separate from their candidates. But over the years, soft-money donations from corporations and unions — otherwise barred from making donations — to political parties have skyrocketed. And the national parties have transferred much of the money to state party accounts that are used to influence specific elections. The growth of soft money was seen by reformers as thwarting the purpose of all campaign-finance regulations.
Because of the U.S. Supreme Court’s 1976 ruling in Buckley v. Valeo, all regulations affecting the money used in campaigns must be evaluated with the First Amendment in mind. This is because money used in campaigns, especially the money spent by candidates, directly or indirectly supports the expression of political views. As the Supreme Court said in Buckley, “Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression.” Critics of the new law say it violates the First Amendment by sharply restricting the ability of political parties and other groups to convey their views about issues and candidates in elections.
Those who like the new law say it merely restores the political landscape to the way it was a decade ago, before the use of soft money and electioneering ads became so widespread. In a recent position paper, Brookings Institution scholars Thomas Mann and Norman Ornstein also insist that “no speech is banned by the new law — not a single ad nor any word or combination of words would be muzzled.” Only the source of the funds and the disclosure of the source are affected by the law, they say. In addition, supporters argue that the importance of curbing corruption in the political system outweighs any infringement on expression the law might impose.
The law itself spelled out an expedited process for handling the inevitable legal challenges to the law. A three-judge panel in the District of Columbia held hearings at which evidence of the impact of campaign contributions was introduced. After months of deliberation, the panel issued its ruling in May 2003. The panel, comprised of appeals court Judge Karen Henderson and district Judges Colleen Kollar-Kotelly and Richard Leon, produced more than 1,600 pages of mix-and-match opinions that upheld some provisions of the law but struck down others. Commentators generally agreed that because of its fractured findings and conclusions, the ruling did little to help the Supreme Court as it undertook its own assessment of the law.
Because the panel did not rule until May, the Supreme Court did not take up the issue until after its summer recess. Twelve separate appeals concerning the BCRA reached the Court, but they were consolidated and became known generally under the name McConnell v. Federal Election Commission. The justices, who traditionally do not begin their term until the first Monday in October, convened in early September to consider the case in a rare four-hour session. Some of the top First Amendment and constitutional lawyers in the nation argued in the cases — including Floyd Abrams, Kenneth Starr, Seth Waxman and the current solicitor general Theodore Olson. Following the arguments, the general view was that the justices would try to issue their ruling before the end of 2003, so that the uncertainty over the law would end before the 2004 presidential campaign got underway.
The justices, like the court panel that first assessed the law, was sharply divided. But the five-justice majority did speak clearly and decisively in support of almost the entire law. Justices John Paul Stevens and Sandra Day O’Connor wrote the main opinion, and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer were also in the majority. Citing extensive evidence of the influence of campaign money on legislation and elections, the majority gave deference to Congress in fashioning laws that would prevent companies, individuals and parties from circumventing earlier campaign laws. The majority gave less weight than it usually does to First Amendment concerns, prompting dissenting Justice Antonin Scalia to call it a “sad day” for freedom of speech. Also dissenting in most parts of the decision were Chief Justice William Rehnquist, and Justices Anthony Kennedy and Clarence Thomas. The only major provision of the law struck down was the ban on campaign donations by minors. The Court unanimously agreed that this section of the law unconstitutionally infringed on the speech rights of minors.
Not exactly. In the Pico case, the Court ruled that books could not be removed from a public school library unless they were educationally unsuitable or “pervasively vulgar.” The ruling did not extend to the acquisition of books — leaving schools to decide which books they would purchase.
Not at the federal level, though at least eight bills to regulate spam have been introduced in recent sessions of Congress. (See a list of federal bills.)
More than 20 states, however, have passed laws regulating spam. (See spamlaws.com for updated information on states that have anti-spam laws.)
Yes. In most cases, participation in extracurricular activities is considered to be a privilege, not a right. As such, participants may be subject to additional or different rules than regular students. Lower courts and the U.S. Supreme Court have noted that participants in extracurricular sports, by electing to participate, subject themselves to these rules. In 1995, the Supreme Court decided a case in which it upheld drug testing for student athletes. In its opinion, the Court noted: “By choosing to ‘go out for the team,’ [student athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.” Vernonia Sch. Dist. 47J v. Acton, U.S. 646, 657 (1995)
One fairly recent case highlighting this issue was decided in a U.S. District Court in Missouri. In Hurt v. Boonville R-1 School District Case, No. 02-4267-CV-C-SOW (W.D. Mo. 2002), a high school student was not allowed to play in a basketball game, because he wore his hair in a type of braid called cornrows. This style violated the team coach’s grooming policy. Though calling the rule “stupid and dumb,” the judge deciding the case found no violation of constitutional or statutory rights and said that “high school coaches have discretion and authority to impose additional requirements on student athletes.”
Though the courts have been divided over how to resolve dress-code disputes and have reached different results, there has not been a successful challenge to a hat regulation in public schools. So, a prohibition on wearing hats in school would probably be upheld.
School boards have used a variety of reasons to support policies on uniforms and dress codes. They say standard attire helps lessen peer pressure aggravated by socioeconomic divisions, promote unity of spirit, identify trespassers on school grounds and prevent gang-related violence. These concerns would likely be among the reasons for prohibiting hats in schools, and such rationales have been upheld in many courts.
The one exception schools would probably make would be for religious headwear.
No, public school officials can prohibit students from wearing shirts with profane messages. In its 1986 decision Bethel School Dist. No. 403 v. Fraser, the U.S. Supreme Court wrote: “Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” The Court explained that “schools must teach by example the shared values of a civilized social order.”
Yes. Political committees that are registered with the Federal Election Commission are required to place disclaimers on their public websites. If you send out more than 500 substantially similar emails, each message must contain a disclaimer. (For specific disclaimer requirements, please see this FEC information.)
Yes. Individuals are not subject to the rules and regulations concerning online campaign advertising. An individual may send unlimited personal emails on any political topic. There is no need even to identify yourself, and it is not necessary to state whether or not you have been authorized by a political party in sending the email.
Absolutely, to both. Uncompensated blogging is exempted from any Federal Election Commission regulation in effect today.
Yes. An ad placed on someone else’s Web page for a fee would be considered to be a “public communication” under the regulations. To take this question one step further, paying to place an ad on another’s website may result in a contribution or expenditure. All disclaimer requirements would also apply in this situation.
Yes. You may provide your services to political candidates and committees, as long as you charge the normal and usual fees for your services.
No, the First Amendment does not limit private employers. The Bill of Rights — and the First Amendment — limit only government actors, not private actors. This means that private employers can restrict employee speech in the workplace without running afoul of the First Amendment. Private employees would have to rely on other sources of law (e.g., contract law, tort law or state employment statutes) to seek relief in court.
Public employers also can set rules for employee behavior in the workplace. However, public employers are government actors and are subject to the limitations of the Bill of Rights, including the First Amendment.