A muddled message on students' First Amendment rights


As distinguished speakers are about to expound ad infinitum at high school commencement ceremonies nationwide about the virtues and responsibilities of living in a free and democratic society, it is interesting to note what high school students were and were not allowed to say freely during the past academic year.

For instance, the 9th U.S. Circuit Court of Appeals ruled in March that a high school senior possessed a First Amendment-protected right to unfurl a banner reading "Bong Hits 4 Jesus" on a sidewalk next to his school while the Olympic torch relay passed by. The students on the public sidewalk were under the supervision of school authorities there at the time.

But the same federal appellate court concluded last month that a student does not have a constitutional right to wear a T-shirt to school reading "Be Ashamed, Our School Embraced What God Has Condemned" on the front and "Homosexuality Is Shameful" on the back.

Put more bluntly, the same court found students have a right to engage in pro-drug messages while they do not have a right to partake in anti-gay rhetoric.

In New Hampshire, a federal district court ruled in March that a student identified as belonging to the "gay students" group on campus could not wear a "no Nazis" patch on his clothing - an insignia the student described as a "tolerance patch." Judge Steven J. McAuliffe ruled in favor of the school, which had argued that it was concerned for the safety of other students because "the patch might spark a disruptive or violent response from the `redneck' group."

But this month, a federal court in El Paso, Texas, held that the First Amendment protected a student who wrote in a spiral notebook in diary-like form a fictional story about a pseudo-Nazi group attacking his school. The school contended it was a terroristic threat of violence.

Making sense of this muddle of cases and opinions is not easy, especially for the young men and women graduating in the coming weeks and facing the democratic responsibilities of voting and making adult choices.

When courts are all over the board, as they are on school speech cases, administrators too often use the confusion for their convenience, with some untoward consequences for the First Amendment. The result is a burgeoning adversarial relationship between students and their schools and a bruised constitutional right of expression in the nation's public schools.

State and federal courts exacerbate this problem because they are left to their own judicial devices in sculpting this growing body of muddled case law. The U.S. Supreme Court has provided substantive guidance in the area of school speech on only three occasions, the last pronouncement coming in 1988. It is noteworthy that the court has declined to hear several school speech cases in recent years.

The difficulty with the Supreme Court's existing trilogy of opinions is that the rules fashioned from these cases don't always fit the contemporary speech issue in play.

For instance, the court never has addressed whether a student can be punished for messages posted on a personal Web site off school premises. That wasn't a problem in 1988. It is today, and the federal courts are split on just how far the law reaches into the personal domain of students.

The problem is not simply new technology. More than three decades ago, the nation's high court gave students the right to espouse political messages on public school property unless they substantially disrupted the educational environment or interfered with the operations of the school. Today, those political messages often are laced with expressions of hatred toward particular groups, some of whose members are fellow classmates. Are the old rules still valid? Federal courts differ on the response to that.

In short, the law of free speech in the nation's public high schools is anything but settled as the Class of 2006 looks to take its place in the world. Sadly, the lessons these students learned throughout high school about the vitality of the First Amendment depend more on the judicial circuit in which the school was situated than on the Constitution that purports to bind the nation together.

Ultimately, the U.S. Supreme Court should clarify the ambiguities created by the various federal appellate courts to give students clear guidance about the scope of their First Amendment rights.

Robert D. Richards and Clay Calvert are professors of communications and law at the Pennsylvania State University and co-directors of the Pennsylvania Center for the First Amendment. Their e-mails are rdr2@psu.edu and cxc45@psu.edu.

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