Your child, niece, or nephew is sitting in the cafeteria at school, enjoying the company of their friends. Suddenly, someone yells “food fight!” in the back of the cafeteria. The cafeteria becomes a scene out of Animal House—food, drinks, and anything not battened down is being flung around the room. Obviously, detention will be handed out generously to those involved. But what of the student that first yelled? Don’t we all have the freedom of speech, to say what we want?
Most are aware that our freedom of speech comes from the First Amendment to the United States Constitution. The First Amendment reads “Congress shall make no law…abridging the freedom of speech.” Therefore, people have wide discretion in their speech. They can partake in political speech or speech for public opinion, even using offensive words to do so. See Cohen v. California, 403 U.S. 15 (1971). They can engage in “symbolic speech,” such as burning the flag. See Texas v. Johnson, 491 U.S. 397 (1989). People can even choose not to engage in speech when everyone else does. See West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
But this doesn’t mean that all speech is free speech. You cannot print or distribute obscene materials and call it free speech. See Roth v. United States, 354 U.S. 476 (1957). And you can’t incite actions that would harm other people and call it free speech, such as screaming “Fire!” in a crowded building. See Schenck v. United States, 249 U.S. 47 (1919).
So how about our little hooligan that screamed “Food fight?” Does that incite action that would harm others? Perhaps, but we can argue about the level of “harm” that can be done by a flying pizza. But that isn’t our last step in the review because this occurred in a school, where there are further restrictions on a student’s free speech.
The Supreme Court has made it very clear: students and teachers don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” See Tinker v. Des Moines, 393 U.S. 503 (1969). But you must have to balance the freedom of speech for students and teachers with the school’s desire to control conduct in school. Therefore, the U.S. Supreme Court has added some additional ability for schools to control speech.
First, a school can prohibit speech that would substantially interfere with the work of the school or disrupt or impinge upon the rights of other students. See Tinker v. Des Moines, 393 U.S. 503 (1969). In Tinker, the school’s ban on black armbands was unconstitutional because the armbands wouldn’t interfere with the school or disrupt other students.
So how do you handle speech that isn’t political (since the armbands were protesting the Vietnam War) when undertaken by a student? The Supreme Court added further authority to schools, letting them balance freedom of a student to advocate against teaching students the boundaries of socially appropriate behavior. See Bethel School District #43 v. Fraser, 478 U.S. 675 (1986). In Fraser, the Court found that suspending a student for making a lewd and borderline obscene speech was proper because it had to teach socially acceptable boundaries to the students.
But what if the speech isn’t disruptive to the school and is socially acceptable? If the speech would be attributed to the school, the school is entitled to control it if it is contrary to the educational mission of the school. See Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the Court said that a school can censor “school-sponsored expression” that might associate the school with any position as long as it is related to a reasonable educational interest. Therefore, a school can control the message in a school play, school newspaper, school-sponsored radio, or other school activity as long as it relates to a reasonable educational interest.
Which brings us back to our food fight instigator. Even if he or she is able to overcome the “harm” question, it seems that the school can take action against the student for his or her outburst. It was clearly disruptive to the other students and substantially interfered with the work of the school, failing the Tinker standard. And it might even run awry of the Bethel standard since it is probably socially unacceptable. Accordingly, the school will be able to take action against the student for the speech, including suspension or expulsion.