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Cursing Congressmen: Student Activism and the First Amendment

A local high school student has captured the media’s attention by claiming his First Amendment rights were violated after the school suspended him for cursing at a congressman.  The student participated in the March 14, 2017 walkout to protest gun laws.  During the protest, he admits that he called his congressman’s office and demanded that politicians get off their “f-ing lazy a – -” and do something about gun law reform.

The student contends that the school violated the student’s First Amendment rights to engage in “political speech.”  The school district argues that the suspension was not in retaliation for participation on the protest, but because the student used profanity.   Who is right?

The First Amendment protects “political speech,” i.e., speech that expresses opinions or views on current political issues or candidates.  McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995); McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1448 (2014).  In fact, political speech has been regarded as the “essence” of the First Amendment.  McIntyre, 514 U.S. at 347.  Courts are required “to err on the side of protecting political speech rather than suppressing it.”  McCutcheon, 134 S. Ct. at 1451.

In contrast, profanity is not always protected under the First Amendment.  Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986).  The United States Supreme Court has consistently held that a school district may prohibit “inappropriate” speech.  Id. at 683.  This includes profanity used during protests that is aimed at “making a political point.” Id. at 682.

According to the United States Supreme Court:

“The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized order.  Consciously or otherwise, teachers – and indeed the older students – demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class.  Inescapably, like parents, they are role models.  The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive speech and conduct . . .”

Id. at 683.

 

In sum, a school may prohibit the use of profanity, even during a political protest.  Id. at 685.

In this particular case, it is unclear whether the speech will be protected.  The speech occurred during the walk out, which was not a school-sanctioned activity.  It occurred during a political protest, it was aimed at a politician, and it requested political action.  On the other hand, the speech occurred on a school campus.  The other participants were students, and these students likely overheard this speech.  The school has a policy prohibiting inappropriate speech and conduct on school grounds.

To mount a First Amendment challenge, the student will also need to show that the suspension was in direct retaliation for his “political speech.”  The school has been very clear that its punishment was not due to the student’s political views or participation in the walkout, but because he violated a school code of conduct. To win, the student will need to prove that the school’s explanation is false or pretextual, and/or that the administrators in charge of the suspension had expressed opposition to the student’s allegedly protected speech.  Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009).   Keep in mind, however, that schools can prohibit political protests on campus if those protests “undermine the school routine.”  Tate v. Bd. of Ed. Of Jonesboro, Ark., Special Sch. Dist., 453 F.2d 975, 978-79 (8th Cir. 1972).

So, who is right?  I don’t know.  The First Amendment is a gray area of the law, particularly when it comes to schools.

I do know that I am proud of our next generation.  While I do not condone this particular student’s choice of words, I commend him for trying to make a difference on an issue he feels strongly about.  If these students continue to be passionate about the shape of this country’s future, 2020 is going to be a very interesting election year.