Yes, Students Have Free Speech

I am sure that you have heard by now about the controversy brewing over a member of the Frederick County Democratic Central Committee who happens to be a teacher at Smithsburg High School.

Mr. Cramer went on to clarify his remarks with unfounded claims of sensationalized hostility and racism towards other students in his classes. Frankly, none of his accusations have any merit without some supporting statement. At this point, I would classify them as rumors at best, a pathetic attempt to cover up his own behavior at worst.

However, this entire saga lead me to ask the question, “Do Students have the right to free speech in school?” In Tinker v. Des Moines Independent Community School District (1965), the Supreme Court heard a case involving armbands. A group of students chose to “publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve.”

Originally, the District Court ruled against the students. However, the Supreme Court overturned that decision with some choice words on free speech in school. Let me share some excerpts with you:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol — black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam — was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

Clearly, this issue has been settled in the courts in a clear and concise manner. Wearing an item with any message is considered “speech” and a government institution like a public school cannot regulate that speech because they do not like the speech. Nor can a teacher kick a student out of their classroom for expressing a message.

Also of note, as with many civil rights cases, both sides of the political spectrum do actually have civil rights. The original case here related to opposition to the Vietnam War, what we could classify as a more liberal position. While today, we are talking about spreading a conservative message, #MAGA and supporting President Trump. Now, any school does have the ability to regulate behavior. So if a student wearing an AntiFa mask or a Trump shirt punch someone, the student can be punished for it. Neither student can be punished for an inanimate object on their persons, they can only be punished for the actual actions that they take.

Simply put, Joshua Cramer’s actions are blatantly unconstitutional. Speech is speech, even speech that you disagree with. So says SCOTUS.

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