Monday, June 20, 2011

What would Abe Fortas think of this?

Abe Fortas only sat on the Supreme Court for a few years in the 1960's before he resigned in disgrace, but he did write a few memorable opinions, including Tinker v. Des Moines School District (1969), recognizing that students have First Amendment rights so long as their speech does not materially and substantially disrupt the work and discipline of the school. In that case, Justice Fortas said that high school students could not be punished for wearing anti-Vietnam War armbands to school. Tinker is still good law.

The case is R.O. v. Ithaca City School District, decided on May 18. The plaintiffs staffed the high school newspaper. They wanted to publish a cartoon showing stick figures having sex with each other. The cartoon was in the context of an article about sex education in the high school. The principal and superintendent nixed the cartoon as inappropriate and "patently offensive." They also said the cartoon makes a "mockery of sexual intercourse" and would "raise inappropriate questions in the minds of many immature students and interfere with what is being taught in the health curriculum regarding both responsibility and abstinence." District officials also prevented plaintiffs from running the cartoon in an independent newspaper that they wanted to distribute on campus.

The funny thing about Tinker is that it was the first and last time the Supreme Court upheld a student speech case. People like the Tinker case because of Justice Fortas's famous line: "[i]t can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.” In the Ithaca stick figure case, Judge Cabranes describes that phrase as "portentous and quotable." It sure is. But there is no way the Second Circuit (Cabranes, Chin and Korman [D.J.]) is going to second-guess district officials in a case like this. (The cartoon is found here at page 18 of the PDF file).

The plaintiffs in this case argued that this case was governed by the lenient Tinker standard. The Court of Appeals sees it differently. Two Supreme Court precedents are in play here: the Hazelwood decision from 1988 and the Fraser case from 1986. Hazelwood says that the principal may edit school-sponsored publications in the name of good taste. Fraser says that schools can punish kids for vulgarities at school. This case implicates both precedents. The stick figures having sex with each other are "unquestionably lewd," the Court of Appeals says. While Fraser involved a lewd student assembly speech, the Second Circuit sees no reason why that precedent cannot govern the written word. In addition, the censorship was "reasonably related to legitimate pedagogical concerns" because, "[a]mong other things, in the weeks during and just prior to the period in which students sought to publish the objectionable cartoon, school authorities became aware that an increasing number of students were engaging in risky sexual behavior." The cartoon would have undercut the school's efforts to stress the seriousness of sexual behavior.

Tinker gets distinguished all the time as the Supreme Court finds ways to make it easier for school officials to regulate student speech in the context of student newspapers (Hazelwood), drug-related speech (Morse v. Frederick [2007]) and vulgarities (Frasier). Tinker is still good law, but its application is limited on a regular basis. What would Abe Fortas think?

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