First Amendment Commons^™

The Basic Logic Of Post-Tinker Jurisprudence, R. George Wright

Cardozo Law Review de•novo

Tinker v. Des Moines Independent Community School District is rightly regarded as a landmark student speech case. At this point, however, it is fair and important to ask about the likely consequences of radically abandoning Tinker and the succeeding case law. What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion briefly pursues this question and endorses a radical abandonment of Tinker and the succeeding cases as binding case law.

The First Thing We Do, Jorge R. Roig

Scholarly Works

There is currently a concerted effort to dumb down America. In the midst of this, the American Bar Association’s Council of the Section on Legal Education and Admissions to the Bar recently agreed to propose that tenure for law professors be eliminated as a requirement for accreditation of law schools. This article analyzes the arguments for and against tenure in legal academia, and concludes that the main proposed justifications for eliminating tenure are highly questionable, at best. A lawyer is more than a legal technocrat. Lawyers are policy makers and public defenders. They are prosecutors and activists. And the development …

Individual Academic Freedom: An Ordinary Concern Of The First Amendment, Scott R. Bauries

Law Faculty Scholarly Articles

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same …

Steubenville And Beyond: The Constitutional Case For Comprehensive Sex Education, Kelly E. Mannion

Cardozo Journal of Equal Rights & Social Justice

The article argues that states are constitutionally required to provide comprehensive sex education to minors, as it is essential for their ability to exercise their constitutional rights to privacy, liberty, and autonomy. The denial of adequate sex education constitutes an undue burden on these rights and fails to meet legal standards for rationality and pedagogical interest. The right to receive information under the First Amendment, combined with the liberty right in sexual and reproductive choice under the Fourteenth Amendment, compels recognition of a state duty to provide such education.

Tinker-Ing With Speech Categories: Solving The Off-Campus Student Speech Problem With A Categorical Approach And A Comprehensive Framework, Scott Dranoff

William & Mary Law Review

No abstract provided.

The Disclaimer Dichotomy: A First Amendment Analysis Of Compelled Speech In Disclosure Ordinances Governing Crisis Pregnancy Centers And Laws Mandating Biased Physician Counseling, Molly Duane

Cardozo Law Review

No abstract provided.

Constitutional Law—First Amendment—Social Media Rams The Tinker Schoolhouse Gate: A New Approach For Online Student Speech, S. Kate Fletcher

University of Arkansas at Little Rock Law Review

No abstract provided.

Affirmative Action And Academic Freedom: Why The Supreme Court Should Continue Deferring To Faculty Judgments About The Value Of Educational Diversity, Steve Sanders

Indiana Journal of Law and Social Equality

No abstract provided.

When The Classroom Is Not In The Schoolhouse: Applying Tinker To Student Speech At Online Schools, Brett T. Macintyre

Seattle University Law Review

Despite the overwhelming increase in students’ Internet use and the growing popularity of online public schools, the United States Supreme Court has never addressed how, or if, schools can discipline students for disruptive online speech without violating the students’ First Amendment rights. What the Supreme Court has addressed is how school administrators can constitutionally discipline students within traditional schools. In a landmark decision, Tinker v. Des Moines Independent Community School District, the Supreme Court announced the now famous principle that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Still, the Court …

Lindros V. Governing Board Of Torrance Unified School District , Patrick Callahan

Pepperdine Law Review

No abstract provided.

Excessive Entanglement: Development Of A Guideline For Assessing Acceptable Church-State Relationships , James M. Zoetewey

Pepperdine Law Review

No abstract provided.

Limitations On Permissible State Aid To Church-Related Schools Under The Establishment Clause: Wolman V. Walter, Timothy J. Blied

Pepperdine Law Review

No abstract provided.

Defamation Is More Than Just A Tort: A New Constitutional Standard For Internet Student Speech, Reesa Miles

Brigham Young University Education and Law Journal

No abstract provided.

Not Lol: Legal Issues Encountered During One High School's Response To Sexting, R. Stewart Mayers Ph.D., Mike F. Desiderio Ph.D.

Brigham Young University Education and Law Journal

No abstract provided.

The Making Of The Moral Child: Legal Implications Of Values Education, Joel S. Moskowitz

Pepperdine Law Review

No abstract provided.

Banning Books In Public Schools: Board Of Education V. Pico, Kelly Bowers

Pepperdine Law Review

In Island Trees Union Free School District v. Pico five members of the Supreme Court, in three separate opinions, held that the first amendment places some constraints on a school board's power to remove books from its school libraries. Although the opinions were couched in terms of preventing censorship, the effect of this decision was to create a right guaranteeing students access to books approved by the federal judiciary.

The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg

Pepperdine Law Review

Since the infamous Scopes trial the matter of the constitutional validity of the "anti-evolution" laws has plagued both legal scholars and school administrators. The courts have generally invalidated legislation which bans outright the teaching of evolution in public schools, but with the advent of the "balanced treatment" acts, a revival of this litigation has begun. The author examines the constitutional analysis utilized by the courts in dealing with the "anti-evolution" and "balanced treatment" acts and provides an historical perspective of the first amendment to question the Court's response to the issue.

Student Speech And The First Amendment: A Comprehensive Approach, Lee Goldman

Florida Law Review

This Article presents a comprehensive approach to student speech cases applicable to both traditional and new media. The Article argues that student speech should be treated differently depending upon whether the speech occurs under school supervision. In particular, student speech outside school supervision should receive the same First Amendment protection accorded non-students in parallel settings. Student speech under school supervision may be disciplined if it is lewd, advocates illegal action, can be deemed school-sponsored speech, or can reasonably be predicted to cause a substantial disruption to the school’s activities. Moreover, school officials’ disciplinary decisions regarding on-campus student speech should be …

Marsh V. Chambers: The Supreme Court Takes A New Look At The Establishment Clause, Diane L. Walker

Pepperdine Law Review

No abstract provided.

Why Can't We Be Friends?: How Far Can The State Go In Restricting Social Networking Communications Between Secondary School Teachers And Their Students?, Elise Rosen Puzio

Cardozo Law Review

No abstract provided.

Avoiding Religious Apartheid: Affording Equal Treatment For Student-Initiated Religious Expression In Public Schools , John W. Whitehead

Pepperdine Law Review

No abstract provided.

Blame It On Catholic Bishop: The Question Of Nlrb Jurisdiction Over Religious Colleges And Universities, Susan J. Stabile

Pepperdine Law Review

No abstract provided.

Reclaiming Hazelwood: Public School Classrooms And A Return To The Supreme Court's Vision For Viewpoint-Specific Speech Regulation Policy, Brad Dickens

Richmond Journal of Law and the Public Interest

Federal and circuit courts continue to fiercely debate whether the Supreme Court's 1988 ruling in Hazelwood v. Kuhineier requires school policies regulating student speech and expression to be viewpoint neutral. However, this note suggests that the language of Hazelwood itself shows that the Circuit debate may be misguided. The Supreme Court intended Hazelwood to stand as a narrow exception to its earlier holding in Tinker, and Hazelwood only applies in instances where the government's own voice is implicated, largely in a public context. When the school, and in effect the government, is speaking with its own voice, the school must …

Cyber Bullying And Free Speech: Striking An Age-Appropriate Balance, Raul R. Calvoz, Bradley W. Davis, Mark A. Gooden

Cleveland State Law Review

Cyber bullying has generally been dealt with by the courts using one of two legal analyses: the “true threats” doctrine, or the Tinker substantial disruption test. This law review, the Cleveland State Law Review, recently published Anti-Cyber Bullying Statutes: Threat to Student Free Speech (referred to herein as “the Threat to Speech article”), which addressed these two theories, and argued that the current evolution of cyber bullying legislation simply goes too far. For example, Hayward states Anti-cyber bullying laws are the greatest threat to student speech because they seek to censor it anytime it occurs, using “substantial disruption” of school …

University Imprimaturs On Student Speech: The Certification Cases, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

The Article begins in Part I by describing these three student speech cases and then examining what makes them a distinct category within the larger student speech landscape. As I discuss, the student speech framework was largely developed by the Supreme Court in the K-12 public school context. Conflicts over student speech in universities, in turn, have generally centered on the extent to which the K-12 framework should carry over to the higher education context, given the greater independence and maturity of university students. Recent cases about universities' ability to control student publications, for example, fall into this mold, with …

Outspoken: Social Media And The Modern College Athlete, 12 J. Marshall Rev. Intell. Prop. L. 509 (2013), Meg Penrose

UIC Review of Intellectual Property Law

The First Amendment to the United States Constitution grants American citizens the right to free speech. However, in the case of college athletes, this right is not without limitation. In exchange for the privilege of participating in college level athletics, college athletes voluntarily agree to terms that restrict their abilities to speak freely, specifically in the context of social media platforms. This article details situations in which college athletes have made offensive statements via social media for which they later needed to delete, explain, and apologize. These examples support the notion that restrictions on college athletes’ speech are not only …

No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This piece begins with a “protective” reading of Morse v. Frederick, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens’ dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools—as part of teaching students about the gravity of drug use—should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why …

Why Non-Discrimination Policies In Higher Education Require A Second Look: The Battle For First Amendment Freedom In The University Setting, Rebecca D. Ryan

Catholic University Law Review

No abstract provided.

Keeping The “Free” In Teacher Speech Rights: Protecting Teachers And Their Use Of Social Media To Communicate With Students Beyond The Schoolhouse Gates, Mark Schroeder

Richmond Journal of Law & Technology

Debate is raging within many school districts around the country about public school teachers’ interactions with their students outside of school through social media sites, such as Facebook and MySpace.

Reclaiming Hazelwood: Public School Classrooms And A Return To The Supreme Court's Vision For Viewpoint-Specific Speech Regulation Policy, Brad Dickens

Richmond Public Interest Law Review

Federal and circuit courts continue to fiercely debate whether the Supreme Court's 1988 ruling in Hazelwood v. Kuhineier requires school policies regulating student speech and expression to be viewpoint neutral. However, this note suggests that the language of Hazelwood itself shows that the Circuit debate may be misguided. The Supreme Court intended Hazelwood to stand as a narrow exception to its earlier holding in Tinker, and Hazelwood only applies in instances where the government's own voice is implicated, largely in a public context. When the school, and in effect the government, is speaking with its own voice, the school must …