Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  So the line restricting obscenity in school was neither new nor especially controversial. In 1992, before the vulgar meaning had been washed off the word “suck” as it entered everyday vocabulary, a federal court backed a middle school’s suspension of a student for wearing a shirt reading “Drugs Suck.”49 Obviously, it was not the content but the manner of speaking that rankled administrators. Somebody should test this again to illustrate how incessantly language evolves.

  But Fraser’s grant of authority to determine which messages are “socially appropriate” has been used beyond obscenity cases. It is occasionally cited by courts upholding bans on the Confederate flag, as against the boy who drew one on a piece of paper. The Eleventh Circuit endorsed “the more flexible Fraser standard, where the speech involved intrudes upon the function of the school to inculcate manners and habits of civility.”50

  Therefore, when administrators want to censor nonpolitical, nonreligious messages that make them uncomfortable, they often win by citing Fraser’s “boundaries of socially appropriate behavior.” Such was the outcome in the Sixth Circuit after a student, Nicholas J. Boroff, donned shirts with pictures and slogans of Marilyn Manson, the Goth shock-rocker, a man who wears black lipstick, dark eye makeup, studded clothing, and tattoos as he performs bizarre music videos with allusions to sex, murder, and suicide. His stage name is taken from the suicidal Marilyn Monroe and the mass murderer Charles Manson. On one of Boroff’s shirts, a three-faced Jesus was illustrated with the words “See No Truth. Hear No Truth. Speak No Truth.” On the back was the word “Believe” with “LIE” highlighted.

  School officials in Van Wert, Ohio, didn’t like it. They said that it violated their policy banning “clothing with offensive illustrations, drug, alcohol, or tobacco slogans,” and they suspended the boy. “Mocking any religious figure is contrary to our educational mission, which is to be respectful of others and others’ beliefs,” the principal declared in an affidavit. “Mocking this particular religious figure is particularly offensive to a significant portion of our school community, including students, teachers, staff members, and parents.” He added that Marilyn Manson’s promotion of drug use could influence teenagers.

  The judges didn’t like Manson either. Two of the panel of three described his appearance as “ghoulish and creepy,” rejected Boroff’s claim that his message was religious, and accepted the school’s determination that “this particular rock group promotes disruptive and demoralizing values which are inconsistent with and counter-productive to education.”

  Even the lone dissenting judge agreed that school authorities could ban T-shirts showing rock stars identified with drug use, but here, he believed, the administration had suppressed an aspersion on a religion. The principal had conceded as much. “If the T-shirt had depicted Jesus in a positive light,” the dissent said, “it would not have been considered ‘offensive.’ ” That made the school’s action “viewpoint discrimination,” and thereby a violation of the First Amendment. But the school was narrowly upheld.51

  Building on Fraser, the Supreme Court in 2007 confirmed a principal’s right to suspend a student who refused to take down a banner, supposedly advocating drug use, at a school-sponsored event off school grounds. A major theme of the opinion in Morse v. Frederick, written by Chief Justice John G. Roberts Jr., was the school’s right to suppress speech that contradicted its antidrug policy.

  It’s a good bet that the justices had no idea what a “bong hit” was before they got this case—unless they had teenage children or grandchildren candid enough to tell them. Yet those were among the words they found censorable. Several students unfurled a fourteen-foot banner reading “BONG HiTS 4 JESUS” in front of their high school in Juneau, Alaska, as the torch for the Winter Olympics passed by en route to Salt Lake City in 2002.

  The principal, Deborah Morse, immediately crossed the street and ordered the students to take down the sign; all but Joseph Frederick complied, he was suspended for ten days, and he sued Morse for damages, winning in the Ninth Circuit.

  A key question was whether the principal had jurisdiction. The Supreme Court found that although they were off school grounds, the students had all been let out during class hours to line the street for the torch relay, and teachers and administrators were interspersed among the youngsters, making it a school event and subject to Fraser’s rules allowing administrators to control the messages in such settings.

  Frederick’s contention “that the words were just nonsense meant to attract television cameras” was rejected by justices who accepted school officials’ translation. Nor did the student define it as a religious message or a political appeal for a change in drug laws, which might have found constitutional protection.

  “School principals have a difficult job, and a vitally important one,” Roberts wrote for the majority. “Morse had to decide to act—or not act—on the spot,” and “failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.”

  How a silly sign might contribute to those dangers the Court did not make clear. It’s hard to escape the sensation, here and in certain other cases, that at least some justices begin at the end they wish to reach and work backward to find constitutional rationalizations. Here was an irreverent remark about Jesus combined with an arguably pro-drug message—a bong being a container filled with water through which a “hit” of marijuana can be smoked, as in a water pipe. If the school had a sophisticated antidrug education program (of which there was no evidence), Justice Stevens wrote in dissent, could it really have been countered by a ludicrous, ambiguous sign “that was never meant to persuade anyone to do anything”?

  It may or may not be relevant that all five Catholic justices voted as a bloc to make this a constitutional issue. If the Jesus reference was offensive, it should not have mattered in a First Amendment case, and perhaps it didn’t. In fact, the student won support from a conservative Christian group founded by Pat Robertson, which worried about the trampling of speech rights as exercised by religious students elsewhere.52 For the five justices, something else besides religion seemed to be going on. The tone of their opinion, amplified by Clarence Thomas’s concurrence, suggested a strong nostalgia for the days when a strict regime prevailed in the nation’s schools. Thomas, the product of a no-nonsense parochial education, reflected admiringly on the “iron hand” of schools in colonial America, declaring categorically, “As originally understood, the Constitution does not afford students a right to free speech in public schools.” He termed Frederick’s sign “impertinence” and recalled Black’s “prophetic” dissent in Tinker that the landmark case would undermine teachers’ authority to maintain order. Thomas wrote that he would throw out Tinker entirely: “We continue to distance ourselves from Tinker, but we neither overrule it nor offer an explanation of when it operates and when it does not. I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators.”53

  In judging the “BONG HiTS 4 JESUS” banner undesirable in content and censorable because it was displayed at a school event, the Court pulled together the two key exceptions it had manufactured in the 1980s—exceptions to Tinker’s broad protection of students’ freedom of speech. One was Fraser’s test of whether the expression was socially appropriate; the other was whether it fit into a new concept—school-sponsored speech. These two rationales have since become useful tools for principals wishing to suppress uncomfortable words.

  The notion that a student’s speech or writing could actually be considered school sponsored grew out of innovative newspaper reporting that worried a Missouri principal. The case illustrated the famous crack by the press critic A. J. Liebling: “Freedom of the press
belongs to the man who owns one.” In a sense, the principal “owned” the Hazelwood East High School newspaper, the Spectrum, and was bothered by what he read about premarital sex and divorce in the spring of 1983, when a journalism class prepared the year’s final edition.

  Their new teacher edited and transmitted the articles for approval by Principal Robert Reynolds, who balked. Two features represented unusual enterprise for a high school paper but created privacy and fairness problems, he felt. The first, about teenage pregnancy, portrayed three pregnant students who were insufficiently disguised; their names had been changed, but Reynolds thought they remained identifiable, along with their boyfriends and parents. The subject also made him uncomfortable, and he worried that it might encourage unprotected sex. The second, about divorce, quoted a student as saying that her father frequently argued with her mother and “was always out of town on business or out late playing cards with the guys.” Reynolds thought the story should have given the father an opportunity to comment. (The version he saw contained the student’s name, which the faculty adviser had actually deleted.)

  Some of the principal’s concerns—identifiability, fairness, and privacy—were legitimate issues, as Martin Duggan, a former editor at the St. Louis Globe-Democrat, told the district court. But rather than teaching a lesson in responsible journalism and getting revisions, Reynolds simply deleted the articles—and not only those two, but the entire two pages on which they appeared, a total of six stories altogether. He did so because it was so late in the year that he believed any delay might kill the entire edition. The students didn’t learn of the wholesale deletion until the paper came out and they saw what was missing.

  The Supreme Court then gave them quite a different lesson. By 5–3, the justices upheld the principal’s right of censorship—and not just on the narrow basis of pedagogical interests, as allowed under Tinker. They might have approved the refusal to publish until the stories met high standards of journalism; that would have fulfilled the curricular purpose.

  Instead, the Court’s majority invented a whole new category of speech—not student initiated but school sponsored, which might include statements, articles, slogans, and symbols that could be construed as an administration’s views, even if not explicitly sanctioned by the school. This class of expression, the Court ruled, was susceptible to official approval or disapproval. Tinker had made no such distinction; Fraser had contained the germ of this idea. Now the Court had made it into an escape route from the First Amendment.

  “Educators are entitled to exercise greater control over this second form of student expression,” declared the majority opinion by Justice Byron White, “to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.”

  The Court offered a broad array of censorable categories, including articles that were “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.” The “unsuitable” label could be affixed quite liberally: administrators could keep from elementary school children a discussion on the existence of Santa Claus, the opinion said, and from high school students “speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the ‘shared values of a civilized social order.’ ”

  Officials could silence expression that would “associate the school with anything other than neutrality on matters of political controversy,” the majority declared. That right to censor was limited by a vague condition: “We hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns” (emphasis added). The term “reasonably related” was legal code for a standard of review at the weak end of constitutional protection, in a zone permitting suppression if it has a “rational basis” and an incidental impact. That’s not hard to prove. The tougher standard is called “strict scrutiny,” which subjects a government intrusion to closer inspection to be sure that it’s not vague or overly broad.

  In a spirited dissent, Justice William J. Brennan Jr. branded the majority’s argument as worrisome nonsense. Neither the principal nor the majority of justices honored the “pedagogical concerns,” Brennan wrote acidly, “unless one believes that the purpose of the school newspaper is to teach students that the press ought never report bad news, express unpopular views, or print a thought that might upset its sponsors.” Principal Reynolds had tipped his hand in meetings with students afterward, telling them that the articles were “ ‘too sensitive’ for ‘our immature audience of readers’ ” and were “inappropriate, personal, sensitive and unsuitable for the newspaper.” This led Brennan to conclude: “The case before us aptly illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the ‘mere’ protection of students from sensitive topics.” As for erroneous attribution to the school, he added, the paper could have published a plain disclaimer reminding readers that it didn’t speak for the administration.54

  Again, a series of poor judgments in a school by both students and administrators worked their way through three levels of the federal judiciary into the stratosphere of constitutional interpretation. What might have been a reasonable delay in publication for journalistic reasons became a wrongheaded ban on uncomfortable subjects, which then grew into a significant principle of law. And the floodgate of censorship was opened.

  The Student Press Law Center, which provides free legal advice, saw a 350 percent jump in calls for help from students battling censorship in the five years after the 1988 Hazelwood ruling, and faculty advisers increasingly reported threats that they would be fired if they didn’t obey instructions to suppress unwelcome writing.55

  Some teenage journalists pushed back. Students at Upper Arlington High School in Ohio wore black armbands to protest the ruling and adorned the next issue of their newspaper with a front-page photograph of the First Amendment on fire. But then their principal, and others elsewhere who had never tried to exercise prior restraint, began insisting on seeing articles before publication. Some demanded that papers stop defining themselves with the term “open forum” or, in legal terms, “limited public forum,” which has been judged a place where speech has First Amendment protection. That label makes the publication available for students’ free expression; it confers the broader rights outlined under Tinker and puts the content beyond the easy reach of school officials who want to censor under stricter Hazelwood standards.56

  In 2007, the Thomas Jefferson Center for the Protection of Free Expression conferred three ironic Jefferson Muzzle awards—something nobody should want to win—on three schools for suppressing uncomfortable student writing: first, Ben Davis High School in Indianapolis for confiscating all copies of Spotlight, which ran an editorial using familiar conservative arguments to oppose illegal immigration (the principal feared “verbal confrontations”); second, Princeton High School in Cincinnati, which barred distribution of Odin’s Word, a magazine containing a critical sports analysis attributing the football team’s poor record to coaching mistakes and a weak offensive playbook (the principal insisted a publication should not “cause division within a school”); and third, Wyoming Valley West High School in Pennsylvania, which removed an artless poem from the literary journal Interim because it said of an unnamed teacher who suspended a student caught without a hall pass, “The beast is such a demon.”57 One of the 2009 Muzzles went to a high school principal in Horry County, South Carolina, who banned a student newspaper for editorializing in favor of same-sex marriage and running a picture of two young men holding hands.58

  There are always crosscurrents in the law. Some lower courts have protected
First Amendment rights by tight interpretations of Hazelwood. The New Jersey Supreme Court overturned a school’s censorship of reviews of R-rated movies, finding nothing offensive and noting that the student paper had previously reviewed similar films without interference.59 A Michigan school lost in federal court after suppressing a student newspaper’s report on neighbors suing over exhaust fumes from idling school buses; the judge ruled that the article was fair, accurate, and unbiased, presenting administrators with no educational justification for action.60 Some states have also enacted statutes that shield student publications, school boards have adopted similar regulations, and freedoms found in state constitutions sometimes exceed those in the First Amendment—at least as interpreted by state judges.

  Long before the parties get to court, however, censorship and self-censorship abound. As in the wider world of authoritarian regimes, both derive from fear—fear of disruptive ideas, fear of retribution for uttering them. Principals and teachers set parameters, students obediently stay within them, and then they carry their high school miseducation into college. On campuses I’ve visited around the country, I’ve seen a worrying lack of boldness and enterprise among student editors, a flaccid style of reporting brought forward from their high school years. I find myself, in our short discussions, pushing them to dig and probe and cover the bevy of controversial issues that honeycomb their campus communities. They don’t always exercise the greater freedom that most college papers enjoy over the high school press. Many are still conditioned to avoid discord. Too often, they devote their front pages to lackluster pieces regurgitating some visitor’s insipid lecture: quick, safe, lazy journalism.

  “My own experiences have convinced me that today, the vast majority of students are unable to practice true journalism at their high school papers,” wrote Richard Just, an editor at The New Republic, who directed a summer program at Princeton for talented high school reporters and editors. Their newspapers “read more like school-sponsored news releases than true journalism,” he said. “Many have been taught to write fluffy profiles of teachers and to celebrate the achievements of their sports teams; fewer have been encouraged to challenge, to criticize, or to investigate.” This was poor preparation for work in the profession. “No high school principal would dream of telling the basketball team that it could run drills but not play games, or permit the drama club to rehearse but never to stage shows. Yet, thanks in part to Hazelwood, many high schools train their students in journalism without allowing them to truly practice it.”61