Many would be surprised by the charge that American schools are engaged in the widespread and court-sanctioned denial of the constitutional rights of their students. Yet as Catherine J. Ross demonstrates in Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights, that is precisely the case. In an address this week to the annual meeting of the Association of American Publishers, Ross, Professor of Law at George Washington University and Visiting Scholar at Harvard’s Graduate School of Education, laid bare the decades-long campaign against free speech in American schools and its implications for democracy, as well as its significance for the publishing industry, a long-standing bulwark against assaults on First Amendment rights. The text of her address is below.
Publishing is a key institution for realizing the values of free expression. This organization—through the Freedom to Read Committee and other activities designed to combat censorship—plays a leadership role, and it is an honor to address you today.
It’s no secret that in many—even most—parts of the world principles of free speech have never been accepted or are not currently being honored. The most dramatic, and certainly best known incidents, involve the assassin’s veto: private persons killing those who publish ideas some find offensive, exemplified by the threats following depictions of the prophet in Denmark and the Charlie Hebdo attack.
But that is the tip of the iceberg, as the New York Times pointed out in an editorial yesterday, in which it condemned recent developments in Western Europe where anti-terrorism laws are being used to prosecute puppeteers, tweeters, and peaceful demonstrators.
In other parts of the world:
- Liberal bloggers are murdered in Bangladesh,
- India arrests student protesters,
- And the highest court in Malaysia held last week that a yellow t-shirt calling for clean government could be banned as a threat to national security.
But we should not be smug, or assume our own house is in order. I’ll begin by reminding you about some of the fundamental precepts of the First Amendment’s Speech Clause, before turning to the state of free speech on American college campuses. Then I will share my research on the fragile state of expressive freedom in public schools, grades k-12. I’ll close with some reflections on the special role the people in this room play in preserving First Amendment freedoms.
I. First Amendment Freedom of Speech
The Speech Clause of the First Amendment is very concise: “Congress shall make no law . . . abridging the freedom of speech.”
This means the government—at every level, from small towns to the federal government, and anyone acting on behalf of the government—may not silence speech because of its content or viewpoint. The First Amendment does not limit the ability of private individuals or organizations to limit expression.
The books your companies put into circulation enter a civic culture that may be more or less receptive to discord, dissent and unsettling ideas some would prefer not to be exposed to.
Free speech is an essential building block of our democracy. The founding fathers “believed that freedom to think as you will and to speak as you think” are indispensible to discovering political truths. They also were concerned about personal autonomy and the importance of free exchange of ideas for discovering the meaning of life: In the words of Justice Brandeis, they “believed liberty to be the secret of happiness and courage to be the secret of liberty.”
The central precepts of the Speech Clause bearing on my comments today include:
- First, the state can’t discriminate among speakers based on content or viewpoint.
- Second, censorship includes both silencing expression before it is shared, and punishing expression after it takes place. Generally, the government may not censor constitutionally protected expression. As publishers, you will be acutely aware that some speech falls outside the protection of the First Amendment—examples include libel and obscenity.
- Third, the Constitution teaches that the best response to noxious speech is more and better speech. We assume that truth will prevail.
- Finally, the Speech Clause is there to protect the dissident, the least popular, or in modern terms, the least politically correct speaker and ideas—often referred to as the “thought we hate.”
All is not well. I am not apocalyptic, or hyperbolic. We aren’t at risk of becoming China, Russia, or Malaysia any time soon. But there are reasons for concern that we are failing to transmit to the next generation of citizens the cultural understandings that support free expression.
II. Colleges and Universities
In the last half year national attention has focused on college campuses where it has been alleged that students seem to have little regard for First Amendment values.
Most of you are familiar with the range of incidents that have captured national attention: cancelled speakers, demands for trigger warnings, demands that racist and offensive, hurtful speech by students or faculty be punished, closing off access for journalists—and mandatory training in diversity sensitivity with potential penalties for those who violate the new norms, whether by spoken or written words or, at some places, demands to punish even offensive gestures and body language, intended or unintended.
Many questions arise about speech on university campuses that are outside the limits of my talk today, such as the extent to which free expression is really at risk on campuses, and whether students, faculty or administrators are primarily responsible. These questions require detailed analysis on a case-by-case basis, but my own view is that each of these groups bears some responsibility.
However, some things that should give us pause are clear. Incidents have occurred at public and private colleges. The First Amendment binds public institutions, but most private colleges have publicly committed to principles of free speech that they may not be living up to.
Some of the controversy involves political correctness and organized attacks on it. Some involves tradeoffs between assigning paramount value to free expression as the Constitution requires and giving a higher priority to concerns about dignity and equality through “hate speech” codes (with varying definitions) that everyone knows would not survive constitutional review if challenged. Indeed, not a single speech code has ever survived judicial examination.
The First Amendment’s free speech zone is “from sea to shining sea.”
And many schools have so-called “free speech” zones—tiny spaces designated for free expression—some of which still require advance approval from officials before speech can take place. This is topsy-turvy. The First Amendment’s free speech zone is “from sea to shining sea.” An entire college campus cannot—consistent with free speech—be designated a “safe space” in which the feelings of the vulnerable are allowed to override free speech. This remains true no matter how historically grounded the feelings of vulnerability or what competing constitutional principles of equality the safe space might promote.
Justices Kagan and Alito have each observed, before they were appointed to the Supreme Court, that in the U.S. there is no right to be protected from hurtful speech, no matter how vile that speech seems to many of us.
Besides infringing on speakers’ rights, silencing offensive or controversial speech diminishes the marketplace of ideas and the rights of listeners to receive communications—whether for the information the communication contains or because they agree with its viewpoint or wish to dispute its viewpoint.
Some pundits have asked: where did today’s college students learn to be so “coddled,” so afraid of competing viewpoints, so entitled to be protected from ideas that hurt or offend?
III. Student Expression in Public Schools, Grades K-12
This brings me to the subject of Lessons in Censorship, which reveals the fragile state of student speech rights in grades k-12 in our public schools. Nearly 90% of American children attend public schools. Schools are our best vehicle for transmitting core democratic values, including pluralism and the meaning of civil liberties.
Instead of modeling freedom, public schools in every part of the country systematically violate students’ First Amendment rights by silencing and punishing speech the Constitution protects. In the process they fail to transmit an understanding of why we have free speech and of how to exercise it. And they give students misleading and inaccurate messages—including the message that you can or should expect to be protected from words and ideas that offend you.
Bear with me as I give you a whirlwind tour of the law governing student speech rights. Students do have First Amendment rights in school, but it is easier for school authorities to prevail under the special legal standards for student speech than it would be under the legal tests that apply to censorship in the world at large.
A series of Supreme Court opinions beginning in the 1960s created a special doctrine for evaluating whether a school that censors student speech violates the First Amendment. The premise was that schools have a special function to perform in training the next generation of citizens, and need the power to control the environment sufficiently that the functions of the school are not disrupted. That does not mean that schools may overrun individual rights—just that when courts review school censorship they apply legal tests that are more forgiving.
Tinker v. Des Moines (1969) was the first case to craft a special rule for students. The Court stated that a school violates student rights by censoring speech unless it can show that it reasonably anticipates that the speech will cause material disruption or collide with the legal rights of others.
The court took a vibrant view of speech rights in Tinker, a case involving a student suspended for wearing black armbands to protest the war in Vietnam. The opinion began with the presumption that the classroom itself is indisputably a place for the free exchange of ideas, and that more than “reasonable school rules” was required to silence expression:
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 . . . or on the campus that deviates from the view of another person may start an argument . . . But our constitution says we must take this risk.
Elsewhere the court has underscored that we are a “disputatious” society. Part of learning the mantle of citizenship is to learn how to respond to differences.
As the Supreme Court became more conservative, each Chief Justice presided over a case that cut back on students’ speech rights. The Court carved out a series of exceptions to the principle that protected student speech unless it threatened to materially disrupt education.
These exceptions give a school enormous discretion to censor speech that is lewd or has sexual connotations, or that appears to advocate the use of illegal substances or underage drinking—you may recognize this as the “Bong Hits 4 Jesus” case.
And in the most important exception that reaches a great swath of speech, the Court created a special category of speech it called “school sponsored.” The speech comes from the student, but is considered school sponsored if observers might think the school approved it. It becomes what Justice Alito called “the school’s own speech.” Schools may censor this expression for any “legitimate pedagogical” reason. This is an easy standard to satisfy but it is not entirely toothless. It reaches almost all school publications, performances, and a great deal more.
These legal rules create a “taxonomy” of student speech rights with different tests for each category of speech. Principals have to figure out what kind of speech the students are engaged in before they can figure out what legal rules apply. It’s very hard to understand.
But schools push beyond the leeway the law has given them. They regularly censor protected expression through a combination of ignorance of the law, disregard, and disdain, leading one student to sum up “my school is all about censorship.”
As publishers, you are likely very aware of the controversies over the choice of textbooks in states like Texas, and over which books libraries should purchase (or remove). These raise cultural and political issues, but usually don’t implicate constitutional rights because the government gets to choose the materials the school provides. Someone has to determine curricular content, and there are few constitutional limits on those decisions.
In contrast, what students themselves say is a recurring cultural and legal battleground.
Schools silence and punish students who express their own opinions on every side of important debates, including national and local politics, the rights of LGBT persons, guns, abortion, and more. They have suspended a six-year-old who called a classmate a “poo-poo head,” stopped an elementary school girl from praying before eating her lunch, and another from distributing a homemade flyer that began “hi, my name is M.B.,” in which she shared her personal experience that finding Christ was like finding your lost dog. In the upper grades, schools suspended two boys who wore political t-shirts, one praising the marines and their rifle, the other criticizing George W. Bush as a substance-abusing, draft-dodging chicken hawk. Another school punished a boy who used a tiny Confederate flag to show his friends where the troops were in a Civil War reenactment he had participated in over the weekend.
The Constitution protects all of this expression—as well as speech adults dismiss as “worthless,” including adolescent humor beyond our comprehension.
The heart of the problem is that too many principals and school board members don’t know or don’t understand the limits the Constitution places on their ability to control what students say, while others simply disregard the law, and, as I show in my book, judges too often throw up their hands and let schools get away with violating student rights. Those judges conclude this area of law is too difficult to use—though the same judges are able to rule on complex antitrust cases.
Some of the incidents are directly tied to books. The six-year-old boy suspended for using the term “poo-poo head” learned it from a book read in school—the graphic novel The Adventures of Super Diaper Baby. After his mother vindicated his First Amendment rights in court, she successfully fought to remove the book from the school’s library. Apparently she did not fully grasp the principles of free expression.
As I worked on my book, almost everyone I talked to informally had a censorship story. Longtime teachers told me incredulously they had no idea students had First Amendment rights and wondered how I had come up with such a creative idea for research.
Students are especially likely to get in trouble for speaking up if someone else’s parent finds their speech controversial or “offensive,” meaning the adult disagrees with it. The range of potential rationales for objecting to any given book is almost unlimited. But recall that controversial and disagreeable speech is exactly what the Speech Clause is designed to protect.
Schools commonly restrict the expression of creative artists whose work is captured in graphic art, music, prose, or poetry. These are the people who may grow up to be your content providers.
When a high school drama class wrote a play about the war in Iraq, using the published reflections of veterans, one parent with a son in the armed forces overseas made a big fuss, leading the principal to cancel the workshop performance. So far, that was “school sponsored speech” that the school could censor, but only if it had a legitimate pedagogical reason. The principal didn’t give one. He said he didn’t like the play’s antiwar viewpoint.
The principal went further. He told the class that they could not perform the play “anywhere, any time.” This was patently unconstitutional.
Then, he went further. He told the class that they could not perform the play “anywhere, any time.” He meant no private performances for family or friends, even if they did not use the school’s name. This was patently unconstitutional. The story had a happy ending, after a civil liberties attorney got involved and explained the law to the teacher and the students. The group performed off-off Broadway, and gained national recognition for fighting censorship.
Under school sponsorship doctrine, newspapers, literary magazines and performances are subject to censorship that goes beyond teaching responsible coverage or good grammar and layout skills. Stories students write for publication about serious issues deemed controversial are often censored. Examples include rape culture, drinking, and teenage depression.
One school principal responded to complaints after a production of Grease by cancelling a planned performance of The Crucible. (The irony was lost on him because he was unfamiliar with the play, which he thought was about adultery, based on an online search.) When a reporter asked an official in that school district if he would allow students to perform Romeo and Juliet, he equivocated: “given the historical context, it would be difficult to say that’s something we would not perform.”
This brings me to the graphic artist Sarah Boman, a high school senior who had never been in trouble. Sarah had taken a summer course where she learned about conceptual art, and during a lunch hour made and hung a poster based on the techniques she had learned. The poster consisted of a swirl of words intended to capture a deranged mind:
Please tell me who killed my dog. He was my best friend . . . Did you do it? . . . I’ll kill you if you don’t tell me who killed my dog . . . tell me, tell me . . .
Within fifteen minutes the janitor took down the poster (before anyone else had seen it) and brought the artwork and Sarah to the principal’s office.
Sarah explained the poster to the principal’s satisfaction, but he still suspended her for five days. When the matter reached the school district, it extended the suspension to 81.5 days, the rest of Sarah’s senior year. It also conditioned her return on a mental fitness examination by a psychologist.
When she sued, the court held the school had violated Sarah’s speech rights because there was no reason to fear a threat after the poster was taken down and explained. Initial actions during an inquiry to ensure safety are different from a penalty that continues after it is clear there is no risk of violence or disruption.
Similar things happen to student writers. Students write fiction and poetry in response to course assignments that may be shared in a class or only shown to the teacher. Sometimes they bring what they wrote in their free time to school. These creative artists have been punished for using curse words, other language deemed rude, for quoting or performing published works with such language, and for plots and drawings school authorities found threatening. Sometimes students were trying to capture “the way real people talk” or merely venting frustrations.
One appellate judge criticized the other members of his appellate panel who allowed a school to punish a boy for a short story. He sounded this alarm:
After today, [students] will have to hide their art work . . . If [someone] finds their art disturbing, they can be punished . . . [this court’s decision makes] high schools cozy places, like daycare centers, where no one may be made uncomfortable by the knowledge that others have dark thoughts, and all the art is of hearts and smiley faces.
If publishers followed this path, we’d be left with nothing but light romances (without consummation) and diet books—not that I have anything against either of those genres.
Most recently, there has been an explosion of incidents involving penalties schools impose on students for what they say from their homes, outside the school day, off the school campus, often on social media—places the school has no business prying into, and no authority over. The off-campus expression schools punish includes sexting, texting, and bullying words without physical violence.
Apparently, in the eyes of school officials, one of the worst things a student can do is criticize a teacher, coach, or principal. Whether couched in rude language, a satirical MySpace page, or simply put “I hate Ms. Phelps,” schools call this harassment and say it is against school rules, even when it takes place online and off campus. This increasingly important arena for censorship tells students the authoritarian state is all-powerful, and watches you 24/7. It undermines one of the core principles of democracy: that every person has the right to criticize the powerful—whether a teacher, a coach, or the President of the United States.
Just yesterday, the Supreme Court declined to hear Bell v. Itawamba, a case in which the full Fifth Circuit Court of Appeals sitting en banc recognized a school’s authority to punish a student for an online posting of a rap music performance calling out two high school coaches who sexually harassed girls at his high school. Written and recorded in a private studio during school vacation, the song used a fictional persona and contained fictional threats of the sort that run through the genre, as explained in an amicus brief filed by rap star Killer Mike and others.
Because the majority regarded the recording as “incredibly profane and vulgar” and believed it contained “threatening, harassing, intimidating language” directed at the school, the court ruled that the school had the power to punish the rap artist, and that it did not violate his speech rights—even though the speech was completely legal outside of school and the singer had already turned 18. The precedent is dangerous and distorting.
When students see peers being punished for what they imagine, what they say, and how they say it, speech is chilled.
Other courts have reached quite different conclusions about authority over off-campus speech, and now that the Supreme Court won’t hear this case, the law will continue to be unsettled. Students in different parts of the country will live under different legal regimes concerning their off-campus and online expression.
When students see peers being punished for what they imagine, what they say, and how they say it, speech is chilled. People refrain from speaking because they fear reprisals. Young people may conclude that the First Amendment allows paternalistic censorship designed to protect them from ideas and language that upset or offend.
Penalties at school for speech the Constitution protects can be severe: they range from short to long suspensions, expulsions, assignment to alternative schools for troubled youth—all actions that we know can start young people on the path from school to prison (known as the “school to prison pipeline”). Students wonder if authorities mean what they say about freedom, liberty, and the Bill of Rights. Is the First Amendment meant to include them, or is it an artifact of ancient history?
As I’ve said, publishers are not the government. You are free to choose among competing ideas, to publish or not to publish. In fact, you have to make those choices.
Courts are the last safeguard for free expression, but publishers, book reviews, bookstores, and universities play critical roles in nurturing a day-to-day culture that supports free speech.
Imagine, for a minute, if your publishing houses, the stores you sell to, Amazon, and so forth decided to blot out “hate speech” in nonfiction, fiction, poetry, and more. You, and they, could—you’re not the government. Those of you who publish books for children, young adults, and the public school textbook market are certainly aware of the pressures the censorious bring to bear on publishers about how to depict sexuality, the history of slavery and more. If you were to succumb to such pressures, it would seriously undermine the spirit of inquiry, critical thinking, and debate.
Many years ago, discussing a jacket emblazoned “fuck the draft,” the Supreme Court explained that one man’s vulgarity is another’s lyric. The speaker has the right to choose the manner of expression that best promotes his ideas. Sometimes language that feels like a punch in the face is an essential part of communication. So too, recipients of speech regard different messages and media as offensive. Even if you wanted to, no one could placate all the audiences.
In my hypothetical, if publishers were to abandon your historical commitment to free expression, we could end up with an impoverished range of ideas, images, and language resembling Orwell’s Newspeak, in which fewer words remain in circulation each year, and each word has a diminished simple meaning—all limiting the range of ideas that can be conceptualized, much less expressed.
When the Supreme Court first considered student speech rights in 1943 it insisted: we must scrupulously protect individual rights in schools “if we are not to strangle the free mind at its source and teach youth to discount important principles of government as mere platitudes.”
Decades later, a federal appellate court exhorted us to “teach the young that our Constitution is a living reality, not parchment preserved under glass.” This is our current challenge. If we fail, I believe our pluralist democracy will be imperiled.