The Evolution of Student Free Speech: Tinker and Beyond

Betul Tarhan,John Dayton

doi:10.3390/laws10040094

Abstract

There are no secure rights without the right of free speech. Free speech is the right that is necessary to defend all other rights. Student free speech is an essential foundation for societal free speech. We will not have a society that values and protects free speech without valuing and protecting free speech for students. Schools must serve as the essential nurseries of our democracy and as examples of the responsible exercise of rights in a free society including free speech. We cannot expect students to spend most of their waking hours in institutions devoid of meaningful rights to freedom of speech and then emerge as adults prepared to exercise and defend democratic freedoms including free speech. Students who learn to exercise free speech rights in schools are more likely to become adults ready to exercise free speech rights in a civil democracy. This article addresses the ongoing evolution of student free speech rights in the U.S., providing a brief overview of free speech law; a review of student speech law in public K-12 schools and in public higher education institutions; a guide to applying the Tinker test in practice; a discussion of the continuing evolution of student speech law in public educational institutions; a review of freedom of the press in public educational institutions; and conclusions on the evolution of student speech.

Highlights

At of the core of the U.S Constitution’s First Amendment free speech protections are strong protections for individual political and religious speech (Dayton 2019)
In Tinker the Court declared that to lawfully limit individual student speech, school officials must establish that the speech would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school
Because free speech rights are strongly protected for children in K-12 public schools, a fortiori, these rights must be even more rigorously protected for adults in public institutions of higher education at the epicenter of the marketplace of ideas and academic freedom

Summary

Introduction

At of the core of the U.S Constitution’s First Amendment free speech protections are strong protections for individual political and religious speech (Dayton 2019). The Court has recognized, that government officials may apply reasonable time, place, and manner regulations to speech where these regulations are content-neutral; serve an important public interest; and leave open adequate alternative routes of communication (Dayton 2019, supra note 1, at 140). In some circumstances reasonable time, place, and manner restrictions on speech are necessary to preserve the public forum for its intended purposes These restrictions do not violate the First Amendment when they serve important public interests; do not discriminate based on the political or religious viewpoint of the speaker; and leave open adequate alternative routes for free speech (Dayton 2019, supra note 1, at 141). Public educational institutions are not military units in which free speech exists only in theory, absolute conformity is required, and subordinates are expected to follow all orders immediately and without question or debate (Dayton 2019, supra note 1, at 141)

Student Speech in Public K-12 Schools

Student Speech in Public Higher Education Institutions

Applying the Tinker Test in Practice

Freedom of the Press in Public Educational Institutions

Conclusions