Freedom of speech & press

The bedrock modern case is New York Times v Sullivan (1964).  “The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions,” the Supreme Court said.

 

Academic Freedom

Stronach v. Virginia State University  (2008) A Federal court in Virginia ruled that academic freedom resides with the university or college. In that case,  district court judge held “that no constitutional right to academic freedom exists that would prohibit senior (university) officials from changing a grade given by (a professor) to one of his students.”

In the Stronach case and several related cases, the courts said academic freedom means that a university can “determine for itself on academic grounds: who may teach, what may be taught, how it should be taught, and who may be admitted to study.”   However, it does not mean that faculty can be compelled by government to speak in certain ways (for example, loyalty oaths) nor does it mean that First Amendment rights are reserved to the determination of a university administration.

University of Texas v Nassar (2013) — Case being heard by the Supreme Court involves  a physician / professor who claims he was retaliated against for accusing his supervisor of religious discrimination.

 Compelled speech

Minersville School District v. Gobitis (1940)  — American students had to salute the flag; but this case was overturned three years late.

West Virginia State Board of Education v. Barnette (1943)  Schools couldnt force students to salute the flag, the courts said. The First Amendment protects students and their religious beliefs if they object to saluting the flag and reciting the pledge of allegiance. Overturned Gobitis.

Sweezy v. New Hampshire (1957)  — Due process and compelled speech questions rise from a state investigation of a university speaker. 

Keyishian v. Board of Regents, 385 U.S. 589 (1967) — Court held that states cannot prohibit employees from being members of the Communist Party and that such laws are overbroad and too vague.

Wisconsin v. Yoder (1972) – Court ruled that Amish children were not required by states law to attend school past the 8^th grade because their religious freedom guaranteed in the First Amendment superseded that.

Wooley v. Maynard (1977)  — People who didn’t like the “Live Free or Die” license plate for New Hampshire didnt have to display it, the court said.   (Minersvill, Barnette, Wooley and several other cases are sometimes called the Jehovah’s WItnesses cases because they were brought by people of that faith).

Board of Regents of the University of Wisconsin System v. Southworth (2000) –Court held that public universities may subsidize campus groups by means of a mandatory student activity fee without violating the students’ First Amendment rights.

LOYALTY OATHS

Garner v. Board of Public Works, (1951)
Adler v. Board of Ed. of City of New York, (1952)
Wiemann v. Updegraff, (1952)
Cramp v. Board of Public Instruction, (1961)

 

HIGH SCHOOL AND FREE SPEECH

Tinker v. Des Moines Independent Community School District (1969) — “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the court said in a strong and memorable decision.

Board of Education v. Pico (1982) — Board of Education’s power to remove books from high school library is limited.

Bethel School District No. 403 v. Fraser (1986) — Involved censorship of high school student speech.

Morse v. Frederick (2007) — The “bong hits for Jesus” case.

New Orleans hall posters get teacher fired. August 2012.

 

Right of Association and religious speech

Widmar v Vincent, 1981 — Can a state university close its facilities to a registered student group?

Board of Education of Westside Community Schools v. Mergens (1990) – Court ruled that religious group must be given the same access to public facilities as all other groups. (Religious case)

Hurley v Irish-American GLBT (1995) — Supreme court said GLBT community had to be allowed to stage a parade but didn’t have to be included in the semi-official parade.

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) — Court held that student fees must be distributed in a content-neutral manner and that conservative student publications cannot be excluded from funding. In particular, a religious publication could not be denied student publication funding on the basis of its religious orientation. “A public university … may not … silence the expression of selected viewpoints… Viewpoint discrimination poses danger to First Amendment speech principles in (1) granting the state the power to examine publications to determine whether such publications are based on some ultimate idea and if so, for the state to classify such publications, and (2) chilling individual thought and expression; such danger is especially real in the university setting, where the state acts against a background and tradition of thought and experiment that is at the center of the nation’s intellectual and philosophical tradition..”

Alpha Delta Chi  v Reed, (2006) — San Diego State said Christian club had to accept athiests.

Christian Legal Society v Martinez (2010) — Student groups have to accept all students regardless of beliefs.

FIRE has discussed this CLS case in light of  state initiatives to allow these groups to choose their own members.

 

Student press

Bazaar v. Fortune, 489 F.2nd 255 (5th Cir. 1973) cert denied 414 US 1135 (1973) The university, as an arm of the state, could not make private publisher decisions about content and had infringed upon the free press rights of students when it denied distribution rights to an issue of the magazine.  (Student press). 

Cohen v California  (1971)   Supreme Court said even indecent speech could not be banned by a school.

Joyner v. Whiting, 447 F.2nd 456 (4th Cir. 1973) A university can’t withdraw funding from a student publication due to content disagreements.

Connell v. Ammons,   (2011)  — Delaware case that has to do with limiting academic freedom in a private school.  Violated harassment code referred to other law school colleagues as “black folks.”

Muir v. Alabama Educational Television Commission, 688 F.2d 1033, 1982, also LEXIS 24813, cert. denied 1983, Several Texas and Alabama PBS stations refused to air the PBS docudrama “Death of a Princess” for fear of offending Saudis who funded university functions. The courts said there is no First Amendment right to compel government speech. “Standard First Amendment doctrine condemns content control by governmental bodies where the government sponsors and financially supports certain facilities through the use of which others are allowed to communicate and to exercise their own right of expression. Government is allowed to impose restrictions only as to “time, place, or manner” in the use of such public access facilities — public forums…. If the state is conducting an activity that functions as a marketplace of ideas, the Constitution requires content neutrality. Thus, a state university may not override editorial freedom for student newspapers.”

Stanley v. Magrath, 719 F.2nd 279 (8th Cir. 1983) University administrators can’t punish students for content of a publication by withholding funds.

Hazelwood School District et al. v. Kuhlmeier et al., (1988) held that high school student publications can be censored.  This does not include college publications.   Hosty v. Carter 412 F.3d 731 (7th Cir. 2005) was an application of the Hazelwood decision to the college press in the Seventh District. The Supreme Court refused cert in 2006, and experts disagree on the impact of this decision.   the

Educational Media Company v Swecker (2012)  The Fourth District federal court upheld a Virginia ABC regulation banning alcohol advertising targeted to those under 21, even in student publications at a university.   The regulations applied to Virginia Tech’s Collegiate Times and U Va’s Cavalier Daily, as well as others. Virginia Supreme Court case: Educational Media Co at Virginia Tech v. Susan Swecker /  No. 110992 November 4, 2011

Pitt News v Pappert, 2009 Sixth District court affirms freedom of speech and right to run alcohol ads in student publications.  Of course this contradicts EMC v Swecker

 

Speech codes & symbolic speech in schools

Tinker v. Des Moines Independent Community School District, 393 US 503 (1969) A school could not punish students for wearing armbands that protested the war.   “It can hardly be argued that either students or teachers shed their constitutional rights at the schoolhouse gate.”

Healey v. James, 408 US 169, 180, (1972) the Court said that the First Amendment applies on college campuses with same force as elsewhere and that a university could not refuse to recognize a student group simply because it didn’t agree with its views.

Papish v. Board of Curators at the Univ. of Missouri, 410 US 667 (1973) The Court said that even ideas offensive to good taste could not be prohibited on a state university campus in the name of conventions of decency alone.

Lamb Chapel v. Center Moriches Union Free School District (1993) – Court ruled that a public school may not refuse to show religious films.

Davis v. Monroe Board of Education  (1999)  school board liable for any student-on-student harassment based on Title 9 anti-discrimination law.

Roberts v Haragan — (2003) — Texas Tech speech code struck down.

Locke v. Davey (2004) – Upheld a publicly funded scholarship programs right to excluded theological degrees.

Garcetti v. Ceballos, 574 U.S. 410 (2006)  — Protection for government employees, LA district attorney criticized the legitimacy of a search warrant.  No right to speak as representative of LA,  no First Amendment protection.

Morse v Frederick (2007)  “Bong Hits 4 Jesus”  case where Supreme Court said advocacy of illegal conduct was not protected expression in a public school.

 

Public Forums

PERRY ED. ASSN. v. PERRY LOCAL EDUCATORS’ ASSN., 460 U.S. 37 (1983) — With respect to public property that is not by tradition or government designation a forum for public communication, a State may reserve the use of the property for its intended purposes, communicative or otherwise, as long as a regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.

Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F.2d 1016 (5th Cir. 1972), Here the federal court adopted the following test for determining whether a public facility is a public forum: “Does the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended make it an appropriate place for communication of views on issues of political and social significance.”