Student Free Speech and Schools as Public Spaces

Abstract

AbstractFree speech jurisprudence is caught between crediting the First Amendment rights of students when they resemble adults or restricting such rights when students seemingly act as children. In Morse v. Frederick (2007), the Supreme Court ruled against Joseph Frederick and his “Bong Hits 4 Jesus” banner because Frederick's speech seemed valueless as an adult act, as it lacked any discernible political value. In this essay, Neil Dhingra uses Hannah Arendt's thought to argue that schools should not be interpreted as political spaces but as social spaces where educational authorities should exercise forbearance as students such as Frederick learn to exercise their free speech rights. In particular, students will practice their First Amendment rights by exposing and exploring the discrepancy between appearance and reality, through dark forms of humor, and in forming different types of friendship, all of which schools are unlikely to be able to manage or interpret. Recognizing these unruly and quasi‐humorous forms of First Amendment practice helps make sense of Frederick's banner. Dhingra argues that in order to create space for students to develop freely — that is, without being subject to excessive scrutiny or succumbing to the danger of conformity, or both — schools should show a wide but not unlimited tolerance to speech like that of Frederick, which may otherwise be dismissed as childish and valueless “gibberish.”