Why I'm Not Bothered by Strong Student Free Speech Rights

The Third Circuit has been on a tear recently in student free speech cases: Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011) (en banc) (First Amendment prohibits high school's discipline of student for off-campus speech), J.S. v. Blue Mountain School District, 650 F. 3d 915 (3d Cir. 2011) (en banc) (same for middle school student), and, this past week, B.H. v. Easton Area School District, ___ F.3d ___ (3d Cir. 2013) (en banc) (First Amendment prohibits middle school from banning “I ♥ boobies! (KEEP A BREAST)” breast cancer awareness bracelets). Judge D. Brooks Smith has been especially forceful and articulate in these cases, concurring in J.S. with the conclusion:

J.S. said vulgar, offensive things about her principal on Myspace. And she went beyond that. She wrote cutting, mean-spirited things about members of his family. If we could suppress her speech without silencing other, more deserving speakers, public discourse would suffer no harm. But courts have long disclaimed the ability to draw a principled distinction between “worthless” and “valuable” speech. We must tolerate thoughtless speech like J.S.'s in order to provide adequate breathing room for valuable, robust speech—the kind that enriches the marketplace of ideas, promotes self-government, and contributes to self-determination. Without condoning her disrespectful and mean-spirited tone, I support J.S.'s right to say the things she said free from government punishment. 650 F.3d at 941.

And writing for the court in B.H.:

School administrators “have a difficult job,” and we are well-aware that the job is not getting any easier. Besides the teaching function, school administrators must deal with students distracted by cell phones in class and poverty at home, parental under- and over-involvement, bullying and sexting, preparing students for standardized testing, and ever-diminishing funding. When they are not focused on those issues, school administrators must inculcate students with “the shared values of a civilized social order.”

 

We do not envy those challenges, which require school administrators “to make numerous difficult decisions about when to place restrictions on speech in our public schools.” And the School District in this case was not unreasonably concerned that permitting “I ♥ boobies! (KEEP A BREAST)” bracelets in this case might require it to permit other messages that were sexually oriented in nature. But schools cannot avoid teaching our citizens-in-training how to appropriately navigate the “marketplace of ideas.” Just because letting in one idea might invite even more difficult judgment calls about other ideas cannot justify suppressing speech of genuine social value. ___ F.3d at ___ (internal citations omitted).

I've been puzzling over these cases--I tend toward libertarian views on the First Amendment, so I'm sympathetic to the results. I also acknowledge, though, that many of us here at MOJ are concerned with the "moral ecology" of the culture and the virtuous formation of children, and we might be properly worried that hampering the ability of school officials to discipline students for their off-campus vulgar and offensive speech (as in Layschock and J.S.) or to prevent students from wearing (moderately) sexually suggestive clothing items takes the liberty of free speech too far, most especially because we are dealing with minors. (Though a reference to "boobies" among middle schoolers is surely tamer than most anything else they encounter.)

That said, I'm still on the side of the students in these cases, and for at least a couple of reasons based on a version of the public/private distinction--a distinction that can sometimes be overdrawn but does some valuable work here. First, parents, families, and networks of friends are, like schools, spheres in which children learn good manners, the virtues of reasonable discourse, and appropriate modes of expression. But families can do so in ways that are particular to each child and to the norms that parents seek to enforce in raising their children. Public school administrators, however, have to create broad policies and might not be good judges of what speech to punish (or not) under such policies, so there is good reason for courts to get them out of the business of doing so (subject to the Fraser and Tinker exceptions for plainly lewd or disruptive speech). That seems especially true in cases such as B.H., where the speech touches--however remotely and in the form of wearing a bracelet--on a matter of political or social commentary, and we don't want public school administrators enforcing an orthodoxy on either side. (Or, as in Layschock or J.S., reaching into the student's life away from school.)

Second, private schools--and a vibrant market in private and homeschooling options for families is important to civil society--are an available option for those whose sensibilities are more restrictive than the First Amendment requires in public schools. Parents have strong voice in private schools (smaller scale and tailoring to parents' and children's moral particularity) and strong exit options (leave and go somewhere else or homeschool). Both are weaker in public schools--districts can be, especially in urban or large suburban areas, bureaucratic and difficult to navigate and are the only option for many families (for financial or other reasons). If so, we might want the protection for speech to be quite broad in public schools, knowing that families can exercise opt-outs or persuasion and correction at home if they disagree with the robust--and properly so--freedom of speech children encounter at a public school.