Law Commons^™

When Students Speak Away From School How Much Does The First Amendment Hear?, Leora Harpaz

Faculty Scholarship

Controversies arising over the extent of the First Amendment speech rights of public school students while at school are resolved by an analysis of the familiar quartet of major decisions of the United States Supreme Court: Tinker, Fraser, Kuhlmeier, and Morse. While these decisions have not removed all uncertainty over the scope of student speech rights, they at least have divided these cases into distinct categories and identified the standard to be applied within each category. The wide range of judicial views on the issue of when student off-campus speech can be the basis of discipline by school authorities makes …

Student Speech: Whose Speech Is It Anyway And Why Does The First Amendment Care?, Leora Harpaz

Faculty Scholarship

A key feature of First Amendment speech analysis in the public schools focuses on speaker identity. Speaker identity can play a crucial role in designing the First Amendment landscape on a variety of issues including the right of speakers to gain access to public school forums for expression, the right of student editors to control the content of school-sponsored publications, and the right of school administrators to permit religious speech in the public school setting. Courts faced with decisions about whether speech in the public school setting is private or government speech must consider the context in which the speech …

Beyond The Schoolhouse Gate: Do Student First Amendment Rights Apply To Classroom Assignments?, Leora Harpaz

Faculty Scholarship

While it has long been apparent that the First Amendment protection for freedom of expression limits the discretion of public school teachers and administrators, it has been assumed that those limitations do not constrain equally all aspects of a school's operation. One area that has seemed somewhat immune from First Amendment free speech oversight has been the pedagogic choices made by schools in defining their own educational objectives. Public schools have been permitted to select curricular materials for use in their classrooms and have been able to evaluate whether students have fulfilled course requirements without concern that they may be …

The Paper Wars: First Amendment Challenges To School Material Distribution Policies, Leora Harpaz

Faculty Scholarship

Public schools are faced with an array of requests seeking permission to distribute material on school property. These requests may come from students, teachers or outside organizations. To respond to these requests, some school districts have adopted written policies to guide their determinations while others lack formal policies and respond on an ad hoc basis. Whether based on formal or informal policies, in deciding whether to permit distribution school officials typically take into account a variety of factors including the content of the material, the identity of the individual or group seeking permission and the time, place or manner of …

The Ten Commandments Return To School And Legal Controversy Follows Them, Leora Harpaz

Faculty Scholarship

The United States Supreme Court confronted the issue of a classroom display of the Ten Commandments almost 25 years ago in the case of Stone v. Graham. In that case, the Court struck down a Kentucky statute that required the posting of the Ten Commandments in all public school classrooms. In a per curiam opinion, the Court summarily reversed a decision of the Supreme Court of Kentucky and concluded that the statute violated the First Amendment's Establishment Clause because it had no secular purpose. The outcomes of recent judicial decisions considering the constitutionality of the display of the Ten Commandments …

Liberating Commercial Speech: Product Labeling Controls And The First Amendment, Lars Noah, Barbara A. Noah

Faculty Scholarship

As federal regulators impose increasing limits on what manufacturers may say about their products, constitutional protections for commercial speech become ever more important. Indeed, the United States Supreme Court's most recent First Amendment decisions suggest meaningful regard for the value of advertising and labeling as types of protected expression. At the same time, however, federal lawmakers are imposing ever more onerous restrictions on promotional activities and product labeling. The Authors discuss federal law relating to regulation of product labeling.

Justice Jackson's Flag Salute Legacy: The Supreme Court Struggles To Protect Intellectual Individualism, Leora Harpaz

Faculty Scholarship

The first amendment has long protected a complex and interwoven range of individual interests. Protected freedoms often involve expressive activities-religion, speech, the press, assembly, and association. The first amendment also protects an individual's freedom to refrain from expressive activity.

Two distinct kinds of liberty interest support the right to refrain from expressive activity. First, individuals have an interest in not being forced to reveal information about personal beliefs or associations. Such a claim may arise in a variety of contexts: a reporter may not wish to reveal the identity of news sources for fear of discouraging future revelations; a public …