Free Speech 3: Indecent, Lewd, or Vulgar Speech on School Grounds

 The U.S. Supreme Court has long recognized that under some circumstances, public school students may be punished for certain forms of expression on campus or at school activities —such as “indecent,” “lewd,” or “vulgar” speech, and that a public school may categorically prohibit vulgar, lewd, indecent or plainly offensive speech that could "undermine the school's basic educational mission. 

Example 1: Speech at a Student Assembly

In 1986, the U.S. Supreme Court issued a landmark decision upholding a school district’s right to impose a suspension on a student for delivering a sexually explicit student counsel nominating speech at a school assembly. The Court said that the school was entitled to dissociate itself from the speech to demonstrate that vulgarity was inconsistent with the fundamental values of public school education. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 685 (1986).

Example 2: Distributing an Off-Campus “Underground” Newspaper

In 1987, the U.S. Court of Appeals for the Eighth Circuit ruled in a case that raised questions about whether the First Amendment allows public school authorities to have a policy regarding distribution of written materials prepared by students or others, prohibiting such materials or requiring school authority pre-approval of materials before distribution. See Bystrom v. Fridley High Sch., Indep. Sch. Dist. No. 14, 822 F.2d 747, 753 (8th Cir. 1987). In that case, the Eighth Circuit held that school officials may regulate expression that materially and substantially interferes with the requirements of appropriate discipline in the operation of the school or collides with the rights of others. They also found it appropriate for schools to impose sanctions to make the point to pupils that vulgar speech and lewd conduct are wholly inconsistent with the "fundamental values" of public school education. Id. 

Example 3: Nude Photos Displayed on and Forwarded from a Cell Phone

In 2015, the Iowa Department of Education upheld a school district’s suspension of a junior high school student who during the school day was displaying and forwarding to other students nude photos, some of which were of female students in the district. See 27 D.o.E. App. Dec. 626. The nature of the photos was such that the student could have been criminally charged in state court with disseminating obscene material to minors, sexually exploiting minors, or in federal court with possession and dissemination of child pornography. The First Amendment didn’t protect the student’s expression or prohibit the punishment imposed by the school district because, among other things, that “expression” led to a material and substantial disruption to the school environment and presented a threat to the health and safety of students on the school premises.