Free Speech & Student Publications


Everyone in the U.S has a right to free speech, which means thatch person can articulate or express his or her opinions without fear of government regulation or censorship. However, in public schools, districts must play a balancing game, ensuring that students are able to express their opinions and values, so long as their expressions to not infringe on the laws, rights, and safe environments of other students. For example, a school would be lawfully justified to censor and even discipline a student who publicly expressed that Muslim students who attended school were a threat to school safety. This expression could potentially create a hostile environment for Muslim students, and would step on their rights to practice their religion freely. When it comes to school publications, school districts reserve the right to censor the content published, and a student’s rights to free speech are therefore regulated.


Since school publications are published with a school’s name on it, any material in the publication can essentially be held as representation of the school. Therefore, schools may regulate the content published, if they have a valid educational purpose to do so, and if they regulate the content within a reasonable manner (Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S 260 (1988). Schools may adopt standards that are higher than those of any real-world publications, such as those of the New York Times, or Time Magazine. They may also disseminate student speech that does not meet the high standards they have set (Hazelwood Sch. Dist. v. Kuhlmeier). Considering the age of the readers, as well as their emotional maturity, schools can refuse to publish certain topics, as well as matters that incite political controversy.


Since school publications often censor material that some students may want to express, some students may distribute their own content to their peers. Though they have the right to do this, schools also reserve the right to censor and regulate content that is distributed on their campus that may interfere with the requirements of order and discipline (Eisner v. Stamford Bd. of Educ., 440 F.2d 803 (2d Cir. 1971); Appeal of Rampello, 37 Ed Dept. Rep 153 (1997). Schools may also prevent the distribution of any literature independently disturbed by students that contains content that is lewd, vulgar, obscene, or plainly offensive (R.O v. Ithaca City Sch. Dist., 645 F.3d 533 (2d Cir.), cert. denied, 132 S. Ct. 422 (2011)).


To prevent materials from being distributed that do not cooperate with a school’s guidelines, many districts have pre-distribution requirements that force student to submit their material for review before being passed out to other students. In addition, schools may regulate the time, place, manner, and duration of the distribution, so that it does not interfere with normal school operations.


A school district’s authority may even extend off campus. Generally, school have no authority to discipline students, or regulate the distribution of material that is distributed off school property (Thomas v. Bd. of Educ., 607 F.2d 1043 (2d Cir. 1979), cert, denied, 444 U.S 1081 (1980)). However, schools have the right to take disciplinary action against a student where materials distributed create a foreseeable risk of a substantial disruption within the school. An example of this would be if a student handed out flyers involving race relations within the school (off school property) that may incite violence, or hostility within the school, then he or she would likely be reprimanded for this action.


Since we now live in the world filled with technology, where information can be shared across the world in the blink of an eye from one’s personal phone, the question often arises of exactly what the law says about free speech and social media, and if schools can reprimand students for posting information or material on the internet. No longer do we live in the days where student must copy hundreds or thousands of flyers to organize, or spread information. The entire school day can be affected with something as simple as a Tweet. The U.S. Supreme court has yet to catch up on this topic, and struggles to draw the lines between free speech, and speech that schools may take action against. However, courts, as well as the commissioner of education have upheld disciplinary action against students for actions, or remarks made by students via technology. In all, speech that violates the protective rights of other students are often cited by school officials, and those students are often disciplined. A few examples are:


  • A student called the administration “douchebags” on her publicly accessible blog, falsely stating that the administration canceled a school event, and urged others to call and email the administration to protest this action and upset them (Doninger v. Niehoff, 642 F.3d 334 (2d Cir.), cert. denied, 132 S. Ct. 499 (2011)).
  • A student used her home computer to create and post to a webpage that targeted a particular classmate, labeling her a “whore”, alleging she had herpes, and inviting classmates to join the online group (Kowalski v. Berkeley Cnty. Schools, 652 F.3d 565 (4th Cir. 2011), cert. denied, 132 S. Ct. 1095 (2012)
  • A student had a text message conversation while off school property with another student containing threats and descriptions of violent actions against a third student (Bradford v. Norwich CSD, 54F.Supp.3d 177 (N.D.N.Y. 2014)).


When it comes to students and their rights to free speech, they often find that their freedom to express themselves are often regulated and censored by their school administration. However, school districts also have a right to protect other students from harassment, discrimination, threats, and hostile environments. In turn, it becomes this balancing act where schools are constantly attempting to find a balance between allowing students to express their opinions, while protecting others from harm. 



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