Schools and "standards of decorum" for school speech

[Volokh, Eugene]

    I sympathize with the desire for "standards of decorum" in K-12
schools, especially given the vileness of some of the anti-Bush
paraphernalia that I've seen around (though I should acknowledge that I
don't know much of it makes its way to the high schools).  And Fraser
does allow some standards of decorum when it comes to vulgarity.  But
can standards of decorum really be applied in a sufficiently
viewpoint-neutral way when it comes to restrictions on supposedly
"potentially inflammatory" (though by hypothesis not that disruptive, or
else Tinker would cover it) speech?
 
    For instance, what Steve sees as a "patently false accusation"
strikes me as an obvious statement of opinion -- not that Obama
subjectively likes terrorists, but in context that his policies will in
fact not be tough enough on terrorists and will thus help them.  Again,
this is the same sort of contextual inquiry we engage in all the time,
for instance with the Bush "International Terrorist" T-shirt, or the
allegations of "blackmail" in Greenbelt, or in lots of other situations.
But Steve's proposal isn't just aimed at false statements of fact, but I
take it at excessive insults, unfair characterizations, and other things
that violate "standards of decorum."  That strikes me as quite unlikely
to be applied fairly.
 
    Also, how exactly can one make "pure dicta" out of the Supreme
Court's express statement of the limits of its holding?  Recall that the
relevant passage is this:
 
    "Elsewhere in its opinion, the dissent emphasizes the importance of
political speech and the need to foster "national debate about a serious
issue,' as if to suggest that the banner is political speech. But not
even Frederick argues that the banner conveys any sort of political or
religious message. Contrary to the dissent's suggestion, this is plainly
not a case about political debate over the criminalization of drug use
or possession.
    "[IV]
    "The question thus becomes whether a principal may, consistent with
the First Amendment, restrict student speech at a school event, when
that speech is reasonably viewed as promoting illegal drug use. We hold
that she may...."
 
    Dictum?  Really?
 
    Eugene
 
________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Wednesday, September 24, 2008 10:16 PM
Cc: CONLAWPROFS professors
Subject: Re: Morse v. Frederick and student suspended forwearing
"Obama:ATerrorist's BestFriend"T-shirt


I don't think students are prohibited from talking about, discussing,
advocating, etc., for their candidates nor to express strong opinions.
I also suspect that students where shirts with just "McCain" or "Obama"
do not have the same kind of response.  So it is not political
expression or speech in toto being curtailed.  It is a specific means of
speech with a potentially inflammatory message. 


While we don't want to teach censorship of a message, I think it not
inappropriate for schools to have certain standards of decorum.  These
are not public streets, parks, or the like.  The students don't have a
choice as to whether to be there.  Schools have a purpose beyond
recreation and political rallying and teach lessons other than civics.


There is a difference between symbolic black armbands of Tinker and the
patently false accusation that a presidential candidate supports
terrorists in the potential for disruption and inflammation of emotions.
Despite Eugene's and Sandy's fair reading of Morse, I just don't think
this court would restrict Morse -- rather it would follow the long trend
since Tinker of limiting student speech rights and enhancing
administrators' control.  I really believe the court would uphold the
school in this case, and so I hope it doesn't get taken to court.  I
would much rather be able to advocate to school boards and
administrators the narrow reading of Morse than get yet another
narrowing of the speech rights of students.

If the Court is willing to uphold the suspension of a student in the
Morse case -- on those facts -- that is to me much more telling than the
language of the court which is pure dicta.  I don't think the decision
would have been any different if the student had put up a sign accusing
Bush of being a terrorist or the principal of being a facist or any
number of other signs calculated to get press coverage.  In this
instance, I think it is more than proper to judge the Court by what it
did, at least as much by what it said.


But when I teach the case in a few weeks, I will in fact teach it
primarily for what the justices say (as I generally do) and the way they
went about deciding, as if they are truly serious about their words.
But I will also highlight the trend since Tinker.  I really fear this
court would go the way of the existence of alternative fora and means
allows restriction of speech in the broad discretion of school
officials.


Steve
 
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