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Student Speech Ruling 25 Years Ago Still Curtails Speech Today

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared. 


Twenty-five years ago – on July 7, 1986 — the U.S. Supreme Court curtailed the free-speech rights of public school students in Bethel School District No. 403 v. Fraserruling that public school officials could punish a student for giving a speech that they considered vulgar and lewd before a school assembly.

The decision signaled a sea change in First Amendment law, as the Court seemingly created a large exception to its seminal free-speech decision inTinker v. Des Moines Independent Community School District (1969) — known as the black-armband decision. In Tinker, the Court had ruled that public school officials could restrict or punished student speech if they could show evidence that it would cause or had caused a substantial disruption of school activities.

Under the Tinker “substantial disruption” standard, Matthew Fraser should have won his free-speech battle with school officials at Bethel High School. Instead Fraser inspired the wrath of school officials after he delivered a sex-laced speech nominating a fellow student for elective office at the school assembly of 600 students.

“I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most . . . of all, his belief in you, the students of Bethel, is firm.

“Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds.

“Jeff is a man who will go to the very end — even the climax, for each and every one of you.

“So vote for Jeff for A. S. B. vice-president — he’ll never come between you and the best our high school can be.”

For his brazenness, school officials suspended Fraser for several days for allegedly violating a school no-disruption rule. But his speech did not cause a substantial disruption. Some students giggled and snickered. A teacher took time to discuss the speech in the classroom. The incident did not, however, cause a breakdown of school discipline or other significant problems.

That is why Matthew Fraser prevailed before a federal district court in Washington and the 9th U.S. Circuit Court of Appeals. His punishment also is the probable reason that fellow students elected Matthew Fraser as a speaker at graduation. Years ago, Matthew Fraser told me in an interview that school officials made a free-speech martyr out of him.

Although lower court judges voted for Matthew Fraser, the U.S. Supreme Court did not. Chief Justice Warren Burger and the majority of his colleagues saw the legal dispute differently. They said school officials needed more flexibility to establish control over students. In the last opinion he wrote on the Court, Burger emphasized that “[t]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”

“Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse,” Burger wrote. He created a new standard to handle student speech considered to be vulgar, lewd or plainly offensive.

Burger took pains to distinguish Fraser’s case from the Tinker precedent, writing there was a “marked distinction” between the political speech symbolized by the black peace armbands and Matthew Fraser’s sexual speech. But Burger conveniently ignored that Matthew Fraser was delivering a speech nominating a student to elective office.

Two justices — Thurgood Marshall and John Paul Stevens — dissented from the Court’s ruling. Marshall, a consistent defender of free speech, wrote that “the School District failed to demonstrate that respondent’s remarks were indeed disruptive.”

Stevens began his dissent with the famous Clark Gable line from “Gone With the Wind”: “Frankly, my dear, I don’t give a damn.” He emphasized that Matthew Fraser was denied due process because he was not given fair notice that he could be punished under a disruption rule for a speech that didn’t create a substantial disruption.

But Chief Justice Burger prevailed 25 years ago today, writing an opinion that gave school officials greater control over student speech within school walls.