Reflecting on the legal foundations of student free speech and expression

The First Amendment provides student journalists with the foundation to pursue critical work in their communities day in and day out: they report the stories that matter to their community, ensure transparency and accountability from decision-makers, fill local “news deserts” and so much more, all while maintaining their lives as students and navigating the world as young adults. 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

– THE CONSTITUTION OF THE UNITED STATES, AMENDMENT 1

As Constitution Day (Sept. 17) approaches and as we reflect on this year’s Democracy Day (Sept. 15) theme –– “Empowering the next generation” –– we are once again reminded of the crucial nature of the First Amendment rights that enable student journalists to provide such an essential service to our democracy. 

Yet, despite the rights the First Amendment so clearly lays out, we are reminded each year that in this ever-changing media environment, coupled with increasing threats to both professional and student press freedom, this country still does not afford all student journalists many of those basic rights.

On this Constitution Day, as we continue fighting for a better future for student journalists, we at SPLC want to take this opportunity to look back at the foundational student free speech and expression Supreme Court cases that helped shape the current legal landscape. 

For student journalists and advisers across the U.S., learning about these key cases is an excellent first step to help you better understand the state of student press freedom and to inform you in your fight against student media censorship.

Interested in reading about more cases affecting student free press and expression rights? We’ve compiled dozens by topic in the SPLC Law Library. And, if you want to take a deeper dive into any of these cases, you can bring an SPLC expert into your classroom or newsroom virtually to chat about a media law topic of your choice with SPLC in the Classroom! 

Tinker v. Des Moines (1969)

The Tinker case is the most important case to uphold student free speech rights. After school officials suspended Mary Beth Tinker, her brother John and her brother’s friend Chris Eckhardt for wearing black armbands to school to protest the Vietnam War, the Supreme Court held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” School officials may not punish or prohibit student speech unless they can clearly demonstrate that it will result in a material and substantial disruption of normal school activities or invade the rights of others.

Healy v. James (1972)

This is a notable case specifically for college students. In this case, the Supreme Court sided with students from Central Connecticut State College, agreeing that their First Amendment rights were violated when officials refused to recognize their radical student group as an official student organization. 

Papish v. Board of Curators of the University of Missouri (1973)

This is another big college case: The University of Missouri expelled student Barbara Papish after distributing a self-published newsmagazine, Free Press Underground, that contained political cartoons the university claimed were “indecent.” Though the district court and the Eighth Circuit Court of Appeals went back and forth about whether Papish’s rights were violated, the Supreme Court eventually held that because the cartoons were not legally obscene or otherwise unprotected by the First Amendment, the college could not punish Papish for the content of her independent speech.

Bethel School District v. Fraser (1986)

During his speech at a mandatory high school assembly nominating a fellow student for a seat in student government, Matthew Fraser used a number of sexually suggestive double entendres in his speech. Officials claimed the speech was “indecent, lewd and offensive,” — and also “vulgar,” “inappropriate,” “obscene” (neither they nor the Court ever really settled on what to call it) — for which they suspended Fraser for three days and did not allow him to speak at commencement. 

While the U.S. District Court for the Western District of Washington and the 9th Circuit Court of Appeals, citing Tinker, found that the district violated Fraser’s rights, the Supreme Court reversed, holding that “[t]he pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students indeed to any mature person,” and that his speech was “wholly inconsistent with the ‘fundamental values’ of public school education.”

Hazelwood v. Kuhlmeier (1988)

While the Tinker case is the shining star of student free speech cases, the vague legal standard that resulted from the Hazelwood decision makes this one of the most significant losses for students’ rights to free speech and expression. It’s also the only case specifically targeting high school student journalists and the one we at the Student Press Law Center have been working for more than three decades to fix, including pushing for the adoption of so-called state New Voices laws. 

At Hazelwood East High School outside St. Louis, the principal prevented student journalists from publishing a special teen issue section of their newspaper that included articles on teen pregnancy and the impact of divorce on students because he found the topics and articles “inappropriate.” The Supreme Court held that the principal’s censorship did not violate the student journalists’ rights because it was a high school-sponsored newspaper produced as part of a class and without a “policy or practice” establishing it as a public forum for student expression. 

Morse v. Frederick (2007)

If you haven’t heard of the infamous “BONG HiTS 4 JESUS” case, well, now you have. When the 2002 Olympic Torch Relay passed through town, students at an Alaskan high school were allowed to leave class and watch. Across the street from the high school, on a public sidewalk, student Joseph Frederick led a group of students that held up a 14-foot banner that read “BONG HiTS 4 JESUS,” resulting in his suspension from school. Despite Frederick not being on school property at the time of the incident, the Supreme Court held that the school’s punishment did not violate Frederick’s rights because it was reasonable to conclude that the banner conveyed a message promoting illegal drug use during a “school-sanctioned activity.” 

Mahanoy v. B.L. (2021)

High school student Brandi Levy failed to make the varsity cheerleading team and was frustrated. So — on a Saturday afternoon using her own phone and her private Snapchat account while at an off-campus convenience store — she posted a photo extending her middle finger along with saying “Fuck school fuck softball fuck cheer fuck everything.” 

After viewing the video, the cheerleading coach kicked Levy off of the team. The Supreme Court held that the school did violate Levy’s First Amendment rights, but the court didn’t provide a broad rule defining when schools can restrict off-campus speech.