Remember No Class Wednesday October 29

I'm going to San Francisco to look for Tony Bennet's heart. And to debate on compelled speech and Mahmoud parental opt outs.

See you next week!

First Amendment Fall 2025: Week Eleven Assignments

 Finish this from last week:

----Casebook p. 1482-1499; Casebook p. 1520-1541; Mahanoy School District; Cohen v California

Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592-Casebook p. 1597-1609;

Then focus on compelled speech doctrine:

 Barnette (link); Wooley v Maynard (link); 303 Creative (link); my article on the no-compelled-speech doctrine (link); Prof. Garnett's article on 303 Creative (link)

First Amendment Fall 2025: Week Ten Assignments (October 27 & 28)

Finish this from last week:

--Casebook p. 1482-1499; Casebook p. 1520-1541; Mahanoy School District; Cohen v California

--  Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592

 

No class Wednesday 

Class Schedule Announcement

 We will use the 4th of our 10 pre-made-up classes to cancel class on Tuesday November 4. I have some faculty matters I have to balance on November 4.

Fighting Words Doctrine

 From Cornell Law School Legal Information Institute:

fighting words

Fighting words are words meant to incite violence such that they may not be protected free speech under the First Amendment. The U.S. Supreme Court first defined them in Chaplinsky v New Hampshire (1942) as words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

In the decades following Chaplinsky, the U.S. Supreme Court has decided a number of cases which further clarify what speech or actions constitute fighting words. 

In Terminiello v. Chicago (1949), the Supreme Court narrowed the scope of what constitutes fighting words. The Court found that words which produce a clear and present danger are unprotected (and are consider[ed] fighting words), but words which invite dispute and even cause unrest are protected (and are not considered fighting words). 

In Feiner v. People of State of New York (1951), the Supreme Court held that akin to the fighting words doctrine, an incitement of a riot which creates a clear and present danger is also not protected by the First Amendment.

In Texas v. Johnson (1989), the Supreme Court redefined the scope of the fighting words doctrine to mean words that are "a direct personal insult or an invitation to exchange fisticuffs." There, the Court held that the burning of a United States flag, which was considered symbolic speech, did not constitute fighting words.

Cohen v California: The Right to Say" F@#$ the Draft"

 Facts:

 "Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct . . . ."  He was given 30 days' imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows:

"On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft."

 

Notice the Court of Appeal affirmed his conviction because it viewed his message as "offensive conduct." There we go again--speech we dislike is not speech it's conduct. The Court says no way:

"The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only "conduct" which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon "speech," not upon any separately identifiable conduct..."

Was his speech obscene and thus not protected speech?

Did it constitute "fighting words" and thus not protected?

What about the argument that his use of the F word could be prohibited to protect "the sensitive from otherwise unavoidable exposure to [his] crude form of protest?"

Unwilling viewers should avert their eyes:

"In this regard, persons confronted with Cohen's jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in being free from unwanted expression in the confines of one's own home. Given the subtlety and complexity of the factors involved, if Cohen's "speech" was otherwise entitled to constitutional protection, we do not think the fact that some unwilling "listeners" in a public building may have been briefly exposed to it can serve to justify this breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid appellant's conduct did in fact object to it, and where that portion of the statute upon which Cohen's conviction rests evinces no concern, either on its face or as construed by the California courts, with the special plight of the captive auditor, but, instead, indiscriminately sweeps within its prohibitions all "offensive conduct" that disturbs "any neighborhood or person." "

Holding:

"Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship  of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little  social benefit that might result from running the risk of opening the door to such grave results.

It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be

Reversed."

Justice Thomas in Morse (edited from casebook)

Justice Thomas believes that "the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." Basically, his position is that parents have delegated their power to discipline their children to public schools, and thus the Free Speech Clause has no more application in government schools than it does in our homes and family lives.

Are you persuaded by this argument? Is it good originalism? Might an originalist take the position that the text of the Free Speech Clause, as applied to the states as a fundamental individual liberty, suggests that a democractic republic depends upon citizens (including young citizens-in-training) who are willing to speak out and debate contoversial issues including issues like war, drug policy, abortion and the moral good of human sexuality?

Take a look at this edited portion of Thomas's opinion:

"Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools."

Justice Thomas makes much the same point in Mahanoy.

Perhaps in a homogeneous society with a common understanding of the good life this might be true. But one of the costs of diversity--particularly of ideological (worldview) diversity--is it is no longer possible to trust that our children will be taught the good life as we understand it in public schools. 

As Alito and Kennedy say (also edited),  public school authorities are agents of the state and our children are made a captive audience for the often controversial (and certainly not "common") values of those who wield political power in the public school system. Parents do not choose public education--"realistically, [parents] have no choice but to send their children to a public school and little ability to influence what occurs in the school." Often, when students are disciplined for speech in the schools, the speech is nothing more than an attempt to make a counterargument against the official worldview expressed by school authorities or by favored groups of students.

What are your thoughts?

Mahanoy: Summary From Oyez

https://www.oyez.org/cases/2020/20-255 

Facts of the case

B.L., a student at Mahanoy Area High School (MAHS), tried out for and failed to make her high school's varsity cheerleading team, making instead only the junior varsity team. Over a weekend and away from school, she posted a picture of herself on Snapchat with the caption “Fuck school fuck softball fuck cheer fuck everything.” The photo was visible to about 250 people, many of whom were MAHS students and some of whom were cheerleaders. Several students who saw the captioned photo approached the coach and expressed concern that the snap was inappropriate. The coaches decided B.L.’s snap violated team and school rules, which B.L. had acknowledged before joining the team, and she was suspended from the junior varsity team for a year.

B.L. sued the school under 42 U.S.C. § 1983 alleging (1) that her suspension from the team violated the First Amendment; (2) that the school and team rules were overbroad and viewpoint discriminatory; and (3) that those rules were unconstitutionally vague. The district court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit affirmed.

Question

Does the First Amendment prohibit public school officials from regulating off-campus student speech?

Conclusion

 

8–1 decision for B.L.
majority opinion by Stephen G. Breyer

The First Amendment limits but does not entirely prohibit regulation of off-campus student speech by public school officials, and here, the school district’s decision to suspend B.L. violated the First Amendment.

The First Amendment limits but does not entirely prohibit regulation of off-campus student speech by public school officials, and, in this case, the school district’s decision to suspend B.L. from the cheerleading team for posting to social media vulgar language and gestures critical of the school violates the First Amendment. Justice Stephen Breyer authored the 8-1 majority opinion of the Court.

Although public schools may regulate student speech and conduct on campus, the Court’s precedents make clear that students do not “shed their constitutional rights to freedom of speech or expression” when they enter campus. The Court has also recognized that schools may regulate student speech in three circumstances: (1) indecent, lewd, or vulgar speech on school grounds, (2) speech promoting illicit drug use during a class trip, and (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,” such as that appearing in a school-sponsored newspaper. Moreover, in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court held that schools may also regulate speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

The school’s interests in regulating these types of student speech do not disappear when the speaker is off campus. Three features of off-campus speech diminish the need for First Amendment leeway: (1) off-campus speech normally falls within the zone of parental responsibility, rather than school responsibility, (2) off-campus speech regulations coupled with on-campus speech regulations would mean a student cannot engage in the regulated type of speech at all, and (3) the school itself has an interest in protecting a student’s unpopular off-campus expression because the free marketplace of ideas is a cornerstone of our representative democracy.

In this case, B.L. spoke in circumstances where her parents, not the school, had responsibility, and her speech did not cause “substantial disruption” or threaten harm to the rights of others. Thus, her off-campus speech was protected by the First Amendment, and the school’s decision to suspend her violated her First Amendment rights.

Justice Samuel Alito authored a concurring opinion, joined by Justice Neil Gorsuch, explaining his understanding of the Court’s decision. Justice Alito argued that a key takeaway of the Court’s decision is that “the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”

Justice Clarence Thomas authored a dissenting opinion, arguing that schools have historically had the authority to regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs. Justice Thomas viewed the facts of this case as falling squarely within that rule and thus would have held that the school could properly suspend B.L. for her speech.

Mahanoy: Excerpts From Justice Alito's Concurring Opinion

 Justice Alito (joined by Gorsuch) added some helpful analysis:

1. "I start with this threshold question: Why does the First Amendment ever allow the free-speech rights of public school students to be restricted to a greater extent than the rights of other juveniles who do not attend a public school? As the Court recognized in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 509 (1969),when a public school regulates student speech, it acts as an arm of the State in which it is located. Suppose that B. L. had been enrolled in a private school and did exactly what she did in this case—send out vulgar and derogatory messages that focused on her school’s cheerleading squad. The Commonwealth of Pennsylvania would have had no legal basis to punish her and almost certainly would not have even tried. So why should her status as a public school student give the Commonwealth any greater authority to punish her speech?" p. 3

This is a brilliant way to look at the issue. It puts all the burden on the school to justify why the government can regulate the off-campus speech of a child simply because she happens to attend a public school.

2. "But when a public school regulates what students say or write when they are not on school grounds and are not participating in a school program, the school has the obligation to answer the question with which I began: Why should enrollment in a public school result in the diminution of a student’s free-speech rights?
The only plausible answer that comes readily to mind is consent, either express or implied. The theory must be that by enrolling a child in a public school, parents consent on behalf of the child to the relinquishment of some of the child’s free-speech rights." p. 5

Pro Tip: If you don't wish to allow public school authorities to control the off-campus speech of your children consider writing a letter to school authorities expressly retaining your parental control when your children are off-campus and not participating in a school-sponsored activity (such as on line instruction). Children need discipline, but better to be grounded for a week by parents than to be suspended by school authorities and have a permanent disciplinary record on their transcripts.

3. "So how much authority to regulate speech do parents implicitly delegate when they enroll a child at a public school? The answer must be that parents are treated as having relinquished the measure of authority that the schools must be able to exercise in order to carry out their state- mandated educational mission, as well as the authority to perform any other functions to which parents expressly or implicitly agree—for example, by giving permission for a child to participate in an extracurricular activity or to go on a school trip." p. 8

4. "At the other end of the spectrum, there is a category of speech that is almost always beyond the regulatory authority of a public school. This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment’s protection...and the connection between student speech in this category and the ability of a public school to carry out its instructional program is tenuous.
If a school tried to regulate such speech, the most that it could claim is that offensive off-premises speech on important matters may cause controversy and recriminations among students and may thus disrupt instruction and good order on school premises. But it is a “bedrock principle” that speech may not be suppressed simply because it expresses ideas that are “offensive or disagreeable.” p.12-13

So, what kind of speech does Alito believe lies within the authority of public school officials:

5. "One category of off-premises student speech falls easily within the scope of the authority that parents implicitly or explicitly provide. This category includes speech that takes place during or as part of what amounts to a temporal or spatial extension of the regular school program, e.g., online instruction at home, assigned essays or other homework,and transportation to and from school. Also included are statements made during other school activities in which students participate with their parents’ consent, such as school trips, school sports and other extracurricular activities that may take place after regular school hours or off school premises, and after-school programs for students who would otherwise be without adult supervision during that time. Abusive speech that occurs while students are walking to and from school may also fall into this category on the theory that it is school attendance that puts students on that route and in the company of the fellow students who engage in the abuse. The imperatives that justify the regulation of student speech while in school—the need for orderly and effective instruction and student protection—apply more or less equally to these off-premises activities." p. 11

So, Mahanoy leaves open many future fact patterns, but the Court strongly has indicated that the ability of public schools to regulate off campus speech of students is strictly limited. Parents, not government, have the primary responsibility of regulating the off-campus speech of their children.

Interesting (I Hope) Pico Hypo

Imagine a city with two displays in the public square one December: a nativity scene (without plastic elves or talking wishing wells) in one public park, and a "gay pride--stop homophobia display" in a second public park. Both displays provoke complaints--the nativity scene by an atheist such as Mr. Newdow who, when he sees the nativity display, is offended by the religious nature of the display (and feels like an outsider, "not a full member of the political community"); and the gay pride display by an Orthodox Jew whose religious conscience is offended when he sees that display and also feels like an unwelcome outsider and not a respected member of the political community.

The city, wishing to avoid controversy and to offend no one, removes both displays.

Under County of Allegheny, did the city have a duty to remove the nativity display?

But now suppose this--supporters of the gay pride display sue claiming that they are a willing audience for the city's message of gay pride and thus, under Pico and the Free Speech Clause (see p. 1528) of casebook), have a right to "receive" the "information and ideas" expressed by the gay pride display without censorship imposed by the city to satisfy the demands of "hecklers" and others who don't like the message. See Laycock, 118 Harv. L.Rev. at 192: "The Free Speech Clause protects audiences as well as speakers." (citing Pico).

Do the Pls have a good claim? How do you think the Supreme Court would decide this case?

Can it be that the same First Amendment (1) requires the city to remove the first display to protect the interests of those offended, and (2) forbids the city from removing the second display to protect the interest of its willing audience against a heckler's veto? In other words, the city must appease the heckler in one case and is forbidden from appeasing the heckler in the second case.

Does this make sense? Is it fair and just?

If supporters of the gay pride display have a right to "receive" it, do supporters of the Nativity display have a right to "receive" it?

In other words, is the EC being used in the Nativity case to restrict the liberty to receive speech in order to advance the interest of hecklers to censor speech? Again, this is a "partial incorporation" issue.

And since Lemon has been overruled, the Nativity display is probably okay under the historical Establishment Clause. But Allegheny has not been overruled yet.

What does Pico say when a city removes a Robert E. Lee display from a public park or public building in response to citizen complaints about Lee's service to the the South in the Civil War? Does removal of the Lee statue violate the willing public's right to receive an art work of historical importance?

Board of Education v. Pico (p. 1526)

This case concerns the right of the School Board to remove certain books from public school libraries.

            What does the plurality opinion say? [notice the law of this case is probably Justice White’s opinion that since there were material issues of fact, summary judgement was inappropriate – Justice White expressly states that he is not willing to address the First Amendment issues at this point]:

            “We hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books. . . .”  (p. 1529) 

Is this a case involving viewpoint suppression?

– But note huge exception – books may be removed if the motive is to eliminate due to “educational suitability" or vulgarity.  (p.1528-1529)

 

Many of the school library books being challenged by parents today contain sexually explicit content (including cartoon depictions of boys and girls engaged in various sexual acts). How would Pico be argued in these cases?

            Whose First Amendment rights are we protecting here? Kurt Vonnegut’s? Langston Hughes's? Were they parties to this lawsuit?

            The students “right to receive information and ideas.” (p. 1528)

            Was anyone preventing the students from going to a bookstore to purchase these books or even to the City library where presumably they were available?

            Suppose the School Board had decided not to purchase the books in the first place for exactly the same reasons.

            Page 1529: “As noted earlier, nothing in our decision today affects in any way the discretion of a local board to choose books to add to the libraries of their schools.”

            Why is it okay to refuse to purchase books the Board dislikes, but not to remove them once they have been purchased?

            Is the right to receive denied any more in the one case than the other?

            If the school makes a mistake in its purchasing books, why can't it correct the mistake once it discovers it?

          Who decide which books are on the shelves of K-12 school libraries?Librarians? Or the duly elected school board?

            Suppose a University Art Museum purchases a collection of oil paintings by a great contemporary artist, one whose paintings often deal with contemporary social issues in a way that offends powerful groups in the local community. Perhaps his paintings are deemed to be offensive by the LGBT community because they express a view favoring traditional marriage. Under pressure from these powerful members of the community, the President of the University orders the museum director to remove the paintings from public display and hide them away in storage.

If patrons of the museum sue challenging the decision to remove the paintings from public view, do they have a claim under the plurality's reasoning in Pico?

Public School Student Speech Cases

I. Tinker

A student's right to speak (even on controversial subjects such as war) in the cafeteria, the playing field, or "on the campus during the authorized hours" is protected so long as he does so "without materially and substantially interfering with appropriate discipline in the operation of the school and without colliding with the rights of others."

II. Fraser

1. Perhaps an ad hoc rule denying the right to engage in "profane" and "vulgar" speech
2. More likely a rule governing the school's right to determine "what manner of speech in the classroom or in school assembly is inappropriate" (student speech that is within the curriculum as opposed to personal speech)

III. Hazelwood

"[E]ducators do not offend the First Amendment by exercising 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."

IV. Morse

1. Probably a narrow, ad hoc rule permitting educators "to restrict student expression [at a school event] that [the administrators] reasonably regard as promoting illegal drug use."

2. Alito and Kennedy make clear that they join the opinion with the understanding that "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"

V. Mahanoy

Student off-campus speech (e.g. on Snapchat or X)

School officials authority to regulate off-campus student speech is significantly diminished. Parents are the normal parties to deal with off-campus speech. Exception for serious or severe bullying, harassment targeting particular individuals, or threats aimed at teachers or other students.

VI. Forum Cases

Don't forget the forum cases, such as Widmar and Mergens. If a public school creates a forum for student speakers or student groups, forum rules apply and equal access is probably required in most cases.

Mahanoy: Bottom Line

 B.L.'s off-campus speech was protected by an 8 to 1 majority opinion primarily because, however vulgar, it was criticism of the rules of a government program (cheer squad)--and thus speech clearly within the First Amendment's "ordinary protection"--and was posted "outside of school hours" through "her personal cellphone to an audience consisting of her private circle of Snapchat friends."

The posts did not substantially disrupt classroom education, and the school's "anti-vulgarity interest is weakened considerably by the fact that B.L. spoke outside the school on her own time."

Bottom line for the majority:

"It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary." p.11

Mahanoy: Excerpts From Justice Breyer's Majority Opinion

Question presented: “Does the First Amendment prohibit public school officials from regulating off-campus student speech?”

Justice Breyer’s Majority opinion:

We can, however, mention three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco paren­tis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to jus­tify intervention.

Third, the school itself has an interest in protecting a stu­dent’s unpopular expression, especially when the expres­sion takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.”

On Tinker:

 As we said in Tinker, “for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused bysomething more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

 The Court held that the fact that the speech upset some students and teachers and resulted in some brief classroom discussions, "does not meet Tinker's demanding standards." p. 10-11 Tinker's standards are "demanding," not de minimis.

Narrow Holding:

Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together,these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference. This case can, however, provide one example.