Free Speech In School? You Bet!

'Offensive' Speech Gets Narrow Reading at 2nd Circuit: Panel Holds Censorship of T-Shirt Violates Student's Rights

This case hits home here in Northwest Indiana because the Portage School District has recently instituted a overly-broad dress code that is arbitary in its criteria. As a school safety "expert" I support reasonable dress codes, but I demand a tolerance of free speech. Many recent cases in the courts have been reactionary, giving the schools broader discretion over dress in light of so many cases of violence and drugs in the schools. Ever since the events at Columbine there has been an overly-broad application of dress codes and other actions a school can take. In one school where I taught the reaction to Columbine was to remove all the games from newly installed computers, even though the games were an integral part of the computer application curriculum.

In this case the school involved has sought to restrict free speech involving political content. I am more concerned with the issue that most schools take a completely arbitrary and capricious view as to what constitutes "plainly offensive" dress, advertising, or decor on clothing. Personally I find the trend toward wearing branded clothing offensive, but I would not advocate a ban on Hilfiger t-shirts or jackets. While I understand the urge to prohibit drug and alcohol "images" on clothing word to school, wouldn't that place a "chilling effect" on the right to advocate for changes to drug laws, membership in NORML and efforts to protest the extremely harsh and biased sentences for drug-related crimes? What about the concept of advertising or business free speech? If a student is allowed to wear a garment that advertises Hilfiger, FUBU, Levi-Strauss, Calvin Klein, or other "brands," shouldn't Budweiser, Miller and Marlboro have the right to equal access to the market? What is "plainly offensive" or "disruptive" about a shirt that broadcasts the Budweiser product line?

I can see what is "plainly offensive" about a patch sewn on to the crotch of a pair of jeans that reads: "Kiss My Patch." Certainly we can understand a shirt offering nudity as being "plainly offensive. But is an image of Pamela Anderson in a string bikini offensive or disruptive? While I find Anderson herself to be offensive and disruptive, her image--especially in a string bikini--is attractive and not offensive... at least in my view.

Here's the article... feel free to voice an opinion.

A Vermont school district violated a seventh grader's free speech rights when it forced him to cover up images of drugs and alcohol on a T-shirt ridiculing President Bush, a unanimous panel of the 2nd U.S. Circuit Court of Appeals ruled last week.

Wading into a murky area of the law, the panel, in resolving an issue of first impression in the circuit, ruled that a 1986 U.S. Supreme Court ruling allowing school authorities to ban "plainly offensive" messages was not applicable to this case.

The T-shirt, which the seventh grader, Zachary Guiles, bought at an anti-Iraq war rally, used "harsh rhetoric and imagery to express disagreement with the President's policies and to impugn his character," Judge Richard J. Cardamone wrote for the majority in Guiles v. Marineau, 05-0327. Judges Rosemary S. Pooler and Sonia Sotomayor joined in the decision.

Among the images depicted on the shirt were a martini glass, three lines of cocaine, a razor blade and a straw. According to the court, the alcohol and drug-related images were intended to portray President Bush as a former alcohol and drug user.

The school allowed a large picture of the president's face, wearing a helmet, superimposed on the body of a chicken. The shirt identified Bush as "Chicken-Hawk-In-Chief." But it demanded that Zachary cover the alcohol and drug-related images. He did so with duct tape on which he wrote "censored."

Zachary and his parents then filed suit claiming that he had been required to cover the images in violation of his free speech rights.

The key question confronting the court was whether school authorities could force Zachary to cover drug and alcohol images under the authority of the Supreme Court's decision in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). In Fraser, the Court upheld the disciplining of a student who gave a speech peppered with sexual innuendo at a school assembly, ruling that school officials could punish student speech that is "vulgar," "lewd," "indecent" or "plainly offensive."

The first three grounds upon which Fraser permits school authorities to punish student speech -- vulgarity, lewdness and indecency -- all connote sexual innuendo and profanity and were not applicable to the images school officials in Williamstown, Vt., had forced Zachary to cover, Cardamone wrote. That left the question of whether the images could be considered "plainly offensive," an issue the 2nd Circuit had not addressed, he said.

In resolving that question, the panel concluded that the phrase "plainly offensive" should be considered an offshoot of the three other grounds, all of which concern speech that is not obscene, but clearly related to statements "containing sexual innuendo and profanity."

NARROW DEFINITION

Cardamone acknowledged that the panel was construing the word "offensive" more narrowly than the dictionary definition, but he concluded that such an interpretation was necessary to prevent the obliteration of the general rule articulated by the Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In Tinker, the Court said student speech should be permitted as long as it would not "materially and substantially disrupt the work and discipline of the school."

The panel reversed the decision of Chief Judge William K. Sessions III of the Vermont District Court, concluding he gave the term "plainly offensive" an overly broad reading. Likewise, Cardamone wrote, the panel was rejecting the approach taken by the 6th Circuit in Boroff v. Van Wert City Board of Education, 220 F.3d 465 (2000), that a school board has broad authority to suppress speech that is "'inconsistent with its basic educational mission.'"

The images the Vermont board ordered obscured, Cardamone wrote, "may cause school administrators displeasure and could be construed as insulting or in poor taste." But, he concluded "we cannot say ... that these images, by themselves, are as plainly offensive as the sexually charged speech" the Supreme Court permitted to be punished in Fraser.

In rejecting the approach taken by the 6th Circuit in Boroff, the panel inferentially found its views out of the mainstream.

"Courts that address Fraser," Cardamone wrote, "appear to treat 'plainly offensive' synonymously with and as part and parcel of speech that is lewd, vulgar and indecent."

Zachary and his parents were represented by Stephen L. Saltonstall of Barr, Sternberg Moss Lawrence Silver Saltonstall & Scanlon in Bennington, Vt. School officials were represented by Anthony B. Lamb of Lamb & Desautels, of Burlington, Vt.