9 ms·

Its not clear to me why it is permissible for schools to ever punish children for nonviolent speech in the united states, the fact that it's even up for debate

Its not clear to me why it is permissible for schools to ever punish children for nonviolent speech in the united states, the fact that it's even up for debate calls into question if the constitution still is the highest law of the land. I don't see the part where the rights only kick in once you are 18.

gnicholas 5y ago
Although it's not strictly about age (kids who go to private/home school cannot have their speech regulated by the government in any special way), the fact is that the vast majority of kids in the US do go to public schools. These schools can regulate speech like employers can — but the difference is that no one is required to work for a specific employer for 12 years. The Court was trying to find a balance that allows schools to prevent kids from going around spewing expletives all day long without consequence, while at the same time not treading too heavily on the legitimate free speech rights of students. BTW, what do you mean when you say "nonviolent speech"? Are you referring to calls to violence, or the more recent concept (not recognized by the courts) that certain speech is itself violence?
- willcipriano 5y ago
  I mean the stuff that is already impermissible for adults to say, calls for violence etc. I totally understand the practical implications and what they are trying to do, I just don't understand how it's legal without a constitutional amendment.
- himinlomax 5y ago
  The power Americans attribute to bad words has always astounded me. This is such a non issue here (France), I can't even think of a case where anyone has been punished, scolded or otherwise criticized for swearing. (There's standards for broadcasting, but they don't apply to single words, and in fact you could run afoul of them without saying a single bad word, while George Carlin's seven words routine would be absolutely uncontroversial.) At worst, swearing too much will paint you as uneducated or abrasive, but in fact if someone complained about it they would be more likely to be criticized.
  - hpoe 5y ago
    I felt the same way too until I realized why. The words you use are used to signal what group you belong to, it is a type of tribal identification. Certain words in the English lexicon are associated with racism and racists and so by using them people believe it signals membership in a particular tribe. The next step is simply that one tribal group will attempt to target anyone who uses certain words for punishment not because of the word itself but because you indicate you are part of a different tribe and therefore must be punished. Ultimately it is an abandonment of the principle of governance by law and instead replaces society with a system of tribal warfare.
  - bbarnett 5y ago
    I've heard this is more due to the US's religious 'puritan' roots. Back in the 70s, as an example, Canadian broadcast TV used to censor violence quite a bit, yet not nudity as much. The US was the reverse, with violence on OTA TV more freely shown, compared to nudity. Canadian vs US broadcast cuts of some movies had to be unique as a result, or US cuts only shown late at night. I imagine the same logic may apply to "swearing", from a religious viewpoint. When I was young, we used to joke that Canadians censor violent death, and Americans censor love...
    - User23 5y ago
      Then you have Quebec French, where the curse words are Catholic references[1]. [1] https://en.wikipedia.org/wiki/Quebec_French_profanity https://en.wikipedia.org/wiki/Quebec_French_profanity
  - kube-system 5y ago
    > At worst, swearing too much will paint you as uneducated or abrasive, This is the rationale for punishing children for saying the words. American parents often do not want their children participating in an environment where those words are socially normalized, and so, school staff prohibit the behavior. Depending on the particular word and its usage, it may be language that inherently bullies other children too -- also not behavior that American parents want school staff to tolerate.
- 908B64B197 5y ago
  > The Court was trying to find a balance that allows schools to prevent kids from going around spewing expletives all day long without consequence, while at the same time not treading too heavily on the legitimate free speech rights of students. Spewing expletives all day long without consequence is a right, guaranteed by the first amendment. If the school system doesn't like it, it's free to relocate to a country where free speech laws don't apply. I still don't understand why this went all the way to the supreme court. It's such a clear-cut case of free speech. Some school admin's reading comprehension must be really poor if they couldn't make sense of the first sentence of the constitution.
  - gnicholas 5y ago
    > I still don't understand why this went all the way to the supreme court. It's such a clear-cut case of free speech. The previous Supreme Court precedent (Tinker, [1]) was from 1969, and it wasn't clear how it should/would apply in the case of digital speech. For example, a student can be off-campus and tweet something that is instantaneously seen by hundreds of students who are on-campus. It wasn't clear how Tinker's framework would apply to this, since twitter and other platforms for remote speech didn't exist at that time. 1: https://www.law.cornell.edu/supremecourt/text/393/503 https://www.law.cornell.edu/supremecourt/text/393/503
  - ThrustVectoring 5y ago
    Students don't (and shouldn't) have the right to disrupt the classroom with their speech. Like, you can't just go and yell expletives in a Wendy's and expect to not get kicked out, and IMO the same should apply to classrooms (even though it's the government that is enforcing these rules here, rather than private property owners).
- SuoDuanDao 5y ago
  I wouldn't call the latter an entirely new concept, it seems to have supplanted the concept of 'fighting words' - though that was speech that necessitated violence, the place it held in society was largely the same.
jasode 5y ago
>Its not clear to me why it is permissible for schools to ever punish children for nonviolent speech in the united states, One principle used to restrict free speech on school campus is about being "disruptive" to the class. E.g. Public schools banned kids from wearing the Confederate flag on shirts because they were "disruptive". In some cases, the free speech advocates fought the rule and yet the ban was upheld by courts even on appeal: https://www.google.com/search?q=confederate+shirt+banned+public+school https://www.google.com/search?q=confederate+shirt+banned+pub...
- willcipriano 5y ago
  I can see kicking them out of school and removing the compulsory requirement that they attend, but the "you must go here, and while here this speech is illegal" doesn't line up with my reading of the first amendment. If I was king I'd declare the whole country a school where criticism of me is banned.
  - neom 5y ago
    https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independent_Community_School_District https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independe... In Tinker the supreme court ruled that schools can limit SOME speech ON/around school premises under narrow circumstances. However, in this case, Mahanoy Area School District v. B.L. - B.L. was not on school grounds at the time, simply references school. The Defence in Mahanoy vs B.L. actually tried to muddle in the standard test under Tinker of "substantial disruption" to this case, but the court basically told them to kick rocks on that.
  - aidenn0 5y ago
    Currently, you are required to attend a school, but are not required to attend a public school. On top of that, the speech is absolutely not illegal. You cannot face criminal sanctions for the speech, just school related discipline.
    - willcipriano 5y ago
      What is detention if not the state detaining you?
neom 5y ago
America resolves it's social issues via separate entities that take a long time to muddle through and together. Very rarely do Americans make sweeping changes quickly, mostly because the system is designed to prevent that. In that it's a relatively young country it's unsurprising that it takes this long to resolve a lot of edge cases via real world incidents, and then make them case law, case law being the vast majority of Americas law. The process to get to the supreme court, and have that case settled, becoming case law, and therefore effectively the law of the land, can take a long time. The laws at the time of the uniting of the states are very broad and subject to evolving interpretation. This is all by design. It wasn't so long ago that the states of the Americas were not united, and some might argue they still have some way to go until they are, if they ever will be.
andrewflnr 5y ago
"Still?" The answer used to be "of course schools can punish children for speech". The constitution does not have, or at least traditionally has not had, the relevance to random school affairs you think it has. If anything its influence is increasing.
- unanswered 5y ago
  The answer also used to be "of course schools aren't government-run daycare"; but here we are. It may not be the importance of the constitution which is changing.
  - dharmab 5y ago
    Under historical common law, schools are in loco parentis- they absolutely were "government-run daycare" in the sense that they had many of the same role, responsibilities and rights as parents.
    - deleted 5y ago
      [deleted]
- sigstoat 5y ago
  https://www.aclu.org/other/tinker-v-des-moines-landmark-supreme-court-ruling-behalf-student-expression https://www.aclu.org/other/tinker-v-des-moines-landmark-supr... students have had significant freedom of speech protections since 1969. not sure what time scale you had in mind.
  - andrewflnr 5y ago
    The time scale in my mind was the lifetime of the Constitution, so about 200 years.
    - mannerheim 5y ago
      Constitutional rights wouldn't have applied to local governments prior to the 14th amendment, so that's only about 100 years. And until Brown v. Board, the court was wrong on the 14th amendment as well.
dharmab 5y ago
Relevant case law: https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independent_Community_School_District https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independe... IANAL and would butcher the explanation, so check out the Decision section.
- willcipriano 5y ago
  I've read it before. It mentions that the state must prove that the speech is disruptive to the administration of the school. The trouble there is the first amendment doesn't have that language. Further the type of speech that is disruptive to the administration of the school can also be the sort of speech the first amendment is there to protect. Under this standard a student who is molested by a faculty member may be forbidden from speaking out about it publicly as it is "disruptive to the administration".
  - JumpCrisscross 5y ago
    > under this standard a student who is molested by a faculty member may be forbidden from speaking out about it publicly as it is "disruptive to the administration" That's a leap. "Disruptive" was defined within the context of the facts and circumstances of that case. Courts are about balancing rights, in this case, the rights of students to receive a public education and the rights of students to speak freely under the First Amendment. This case narrowed the definition, ever so slightly, of what is and isn't "disruptive" within the meaning of this law.
nonameiguess 5y ago
The Constitution doesn't restrict local governments nearly as much as it does the federal government. And, of course, at least some schools are private and even less restricted because of that. Even here, I'm surprised by the free speech advocacy of the justices. It doesn't seem consistent with plenty of other rules that are allowed to stand. This school could have punished the same cheerleader for the same words if she'd said them in class or even at practice. As far as I can tell, she was only protected because the school can't punish her for what she says totally outside of school property and activities. The wording of the decision makes it sound like you're free to speak profanely anywhere and anytime you want, but schools clearly punish people for profanity all the time and that's never been stopped.
- DiggyJohnson 5y ago
  How did schools punish students for profanity outside of school grounds before the digital age?
- JumpCrisscross 5y ago
  > Constitution doesn't restrict local governments Yes, it does. The Fourteenth and Fifteenth Amendments [1] incorporate much of the Bill of Rights against the states. Local governments are creatures of the state; SCOTUS has long found that local governments have been incorporated against as well. [1] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
lisper 5y ago
Constitutional protections are never absolute. e.g. yelling fire in a crowded theater, the 2nd amendment and WMDs, or practicing a religion that requires human sacrifice. (Even animal sacrifice might be prohibited, I don't know.)
- unanswered 5y ago
  > yelling fire in a crowded theater ... is not and never has been an exception to the constitution. It was written as part of a dissent which has been thoroughly ignored and repudiated except by people who don't understand the first thing about US law.
  - kube-system 5y ago
    It is technically incorrect (or at least, untested to the current standard), but it's a useful and more understandable approximate than the technically correct "imminent lawless action"... and a lot more palatable than quoting the KKK leader whose case set that standard.
    - anjbe 5y ago
      Yes, much more palatable to quote a decision that used the phrase to argue protesting the draft is a violation of the Espionage Act.
      - kube-system 5y ago
        I can't tell if this is sarcasm, but yes, I agree. That is more palatable than quoting violent white supremacist rhetoric.
  - lisper 5y ago
    You are mistaken. It was written by Oliver Wendel Holmes writing for a unanimous court in Schenck v. United States: https://en.wikipedia.org/wiki/Schenck_v._United_States https://en.wikipedia.org/wiki/Schenck_v._United_States Granted that decision was later partially overturned, but the general principle that the first amendment protections are not absolute remains in force, and there are many extant examples: libel laws, laws barring false advertising, and laws against incitement of violence are all constitutional.
kube-system 5y ago
In general, the reason is: https://en.wikipedia.org/wiki/In_loco_parentis https://en.wikipedia.org/wiki/In_loco_parentis While students do absolutely have rights, schools are also tasked with caring with kids (especially during the school day). It's typically at the intersection of these rights and responsibilities where we see these cases make it to SCOTUS.
helen___keller 5y ago
> Its not clear to me why it is permissible for schools to ever punish children for nonviolent speech in the united states The most obvious counterexample would be speech that disrupts education. Why even have schools if one student can choose to talk and yell and disrupt class and not be punished for it?
belltaco 5y ago
She said bad things about the cheerleading team. The team decided to not have her as a cheerleader anymore. The school is a sideshow to all this. She wasn't punished by being put in detention or any other school related activity. Not sure how this is "punishing children".

gnicholas 5y ago

Although it's not strictly about age (kids who go to private/home school cannot have their speech regulated by the government in any special way), the fact is that the vast majority of kids in the US do go to public schools. These schools can regulate speech like employers can — but the difference is that no one is required to work for a specific employer for 12 years. The Court was trying to find a balance that allows schools to prevent kids from going around spewing expletives all day long without consequence, while at the same time not treading too heavily on the legitimate free speech rights of students. BTW, what do you mean when you say "nonviolent speech"? Are you referring to calls to violence, or the more recent concept (not recognized by the courts) that certain speech is itself violence?

willcipriano 5y ago
I mean the stuff that is already impermissible for adults to say, calls for violence etc. I totally understand the practical implications and what they are trying to do, I just don't understand how it's legal without a constitutional amendment.
himinlomax 5y ago
The power Americans attribute to bad words has always astounded me. This is such a non issue here (France), I can't even think of a case where anyone has been punished, scolded or otherwise criticized for swearing. (There's standards for broadcasting, but they don't apply to single words, and in fact you could run afoul of them without saying a single bad word, while George Carlin's seven words routine would be absolutely uncontroversial.) At worst, swearing too much will paint you as uneducated or abrasive, but in fact if someone complained about it they would be more likely to be criticized.
- hpoe 5y ago
  I felt the same way too until I realized why. The words you use are used to signal what group you belong to, it is a type of tribal identification. Certain words in the English lexicon are associated with racism and racists and so by using them people believe it signals membership in a particular tribe. The next step is simply that one tribal group will attempt to target anyone who uses certain words for punishment not because of the word itself but because you indicate you are part of a different tribe and therefore must be punished. Ultimately it is an abandonment of the principle of governance by law and instead replaces society with a system of tribal warfare.
- bbarnett 5y ago
  I've heard this is more due to the US's religious 'puritan' roots. Back in the 70s, as an example, Canadian broadcast TV used to censor violence quite a bit, yet not nudity as much. The US was the reverse, with violence on OTA TV more freely shown, compared to nudity. Canadian vs US broadcast cuts of some movies had to be unique as a result, or US cuts only shown late at night. I imagine the same logic may apply to "swearing", from a religious viewpoint. When I was young, we used to joke that Canadians censor violent death, and Americans censor love...
  - User23 5y ago
    Then you have Quebec French, where the curse words are Catholic references[1]. [1] https://en.wikipedia.org/wiki/Quebec_French_profanity https://en.wikipedia.org/wiki/Quebec_French_profanity
- kube-system 5y ago
  > At worst, swearing too much will paint you as uneducated or abrasive, This is the rationale for punishing children for saying the words. American parents often do not want their children participating in an environment where those words are socially normalized, and so, school staff prohibit the behavior. Depending on the particular word and its usage, it may be language that inherently bullies other children too -- also not behavior that American parents want school staff to tolerate.
908B64B197 5y ago
> The Court was trying to find a balance that allows schools to prevent kids from going around spewing expletives all day long without consequence, while at the same time not treading too heavily on the legitimate free speech rights of students. Spewing expletives all day long without consequence is a right, guaranteed by the first amendment. If the school system doesn't like it, it's free to relocate to a country where free speech laws don't apply. I still don't understand why this went all the way to the supreme court. It's such a clear-cut case of free speech. Some school admin's reading comprehension must be really poor if they couldn't make sense of the first sentence of the constitution.
- gnicholas 5y ago
  > I still don't understand why this went all the way to the supreme court. It's such a clear-cut case of free speech. The previous Supreme Court precedent (Tinker, [1]) was from 1969, and it wasn't clear how it should/would apply in the case of digital speech. For example, a student can be off-campus and tweet something that is instantaneously seen by hundreds of students who are on-campus. It wasn't clear how Tinker's framework would apply to this, since twitter and other platforms for remote speech didn't exist at that time. 1: https://www.law.cornell.edu/supremecourt/text/393/503 https://www.law.cornell.edu/supremecourt/text/393/503
- ThrustVectoring 5y ago
  Students don't (and shouldn't) have the right to disrupt the classroom with their speech. Like, you can't just go and yell expletives in a Wendy's and expect to not get kicked out, and IMO the same should apply to classrooms (even though it's the government that is enforcing these rules here, rather than private property owners).
SuoDuanDao 5y ago
I wouldn't call the latter an entirely new concept, it seems to have supplanted the concept of 'fighting words' - though that was speech that necessitated violence, the place it held in society was largely the same.

jasode 5y ago

>Its not clear to me why it is permissible for schools to ever punish children for nonviolent speech in the united states, One principle used to restrict free speech on school campus is about being "disruptive" to the class. E.g. Public schools banned kids from wearing the Confederate flag on shirts because they were "disruptive". In some cases, the free speech advocates fought the rule and yet the ban was upheld by courts even on appeal: https://www.google.com/search?q=confederate+shirt+banned+public+school https://www.google.com/search?q=confederate+shirt+banned+pub...

willcipriano 5y ago
I can see kicking them out of school and removing the compulsory requirement that they attend, but the "you must go here, and while here this speech is illegal" doesn't line up with my reading of the first amendment. If I was king I'd declare the whole country a school where criticism of me is banned.
- neom 5y ago
  https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independent_Community_School_District https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independe... In Tinker the supreme court ruled that schools can limit SOME speech ON/around school premises under narrow circumstances. However, in this case, Mahanoy Area School District v. B.L. - B.L. was not on school grounds at the time, simply references school. The Defence in Mahanoy vs B.L. actually tried to muddle in the standard test under Tinker of "substantial disruption" to this case, but the court basically told them to kick rocks on that.
- aidenn0 5y ago
  Currently, you are required to attend a school, but are not required to attend a public school. On top of that, the speech is absolutely not illegal. You cannot face criminal sanctions for the speech, just school related discipline.
  - willcipriano 5y ago
    What is detention if not the state detaining you?

neom 5y ago

America resolves it's social issues via separate entities that take a long time to muddle through and together. Very rarely do Americans make sweeping changes quickly, mostly because the system is designed to prevent that. In that it's a relatively young country it's unsurprising that it takes this long to resolve a lot of edge cases via real world incidents, and then make them case law, case law being the vast majority of Americas law. The process to get to the supreme court, and have that case settled, becoming case law, and therefore effectively the law of the land, can take a long time. The laws at the time of the uniting of the states are very broad and subject to evolving interpretation. This is all by design. It wasn't so long ago that the states of the Americas were not united, and some might argue they still have some way to go until they are, if they ever will be.

andrewflnr 5y ago

"Still?" The answer used to be "of course schools can punish children for speech". The constitution does not have, or at least traditionally has not had, the relevance to random school affairs you think it has. If anything its influence is increasing.

unanswered 5y ago
The answer also used to be "of course schools aren't government-run daycare"; but here we are. It may not be the importance of the constitution which is changing.
- dharmab 5y ago
  Under historical common law, schools are in loco parentis- they absolutely were "government-run daycare" in the sense that they had many of the same role, responsibilities and rights as parents.
  - deleted 5y ago
    [deleted]
sigstoat 5y ago
https://www.aclu.org/other/tinker-v-des-moines-landmark-supreme-court-ruling-behalf-student-expression https://www.aclu.org/other/tinker-v-des-moines-landmark-supr... students have had significant freedom of speech protections since 1969. not sure what time scale you had in mind.
- andrewflnr 5y ago
  The time scale in my mind was the lifetime of the Constitution, so about 200 years.
  - mannerheim 5y ago
    Constitutional rights wouldn't have applied to local governments prior to the 14th amendment, so that's only about 100 years. And until Brown v. Board, the court was wrong on the 14th amendment as well.

dharmab 5y ago

Relevant case law: https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independent_Community_School_District https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independe... IANAL and would butcher the explanation, so check out the Decision section.

willcipriano 5y ago
I've read it before. It mentions that the state must prove that the speech is disruptive to the administration of the school. The trouble there is the first amendment doesn't have that language. Further the type of speech that is disruptive to the administration of the school can also be the sort of speech the first amendment is there to protect. Under this standard a student who is molested by a faculty member may be forbidden from speaking out about it publicly as it is "disruptive to the administration".
- JumpCrisscross 5y ago
  > under this standard a student who is molested by a faculty member may be forbidden from speaking out about it publicly as it is "disruptive to the administration" That's a leap. "Disruptive" was defined within the context of the facts and circumstances of that case. Courts are about balancing rights, in this case, the rights of students to receive a public education and the rights of students to speak freely under the First Amendment. This case narrowed the definition, ever so slightly, of what is and isn't "disruptive" within the meaning of this law.

nonameiguess 5y ago

The Constitution doesn't restrict local governments nearly as much as it does the federal government. And, of course, at least some schools are private and even less restricted because of that. Even here, I'm surprised by the free speech advocacy of the justices. It doesn't seem consistent with plenty of other rules that are allowed to stand. This school could have punished the same cheerleader for the same words if she'd said them in class or even at practice. As far as I can tell, she was only protected because the school can't punish her for what she says totally outside of school property and activities. The wording of the decision makes it sound like you're free to speak profanely anywhere and anytime you want, but schools clearly punish people for profanity all the time and that's never been stopped.

DiggyJohnson 5y ago
How did schools punish students for profanity outside of school grounds before the digital age?
JumpCrisscross 5y ago
> Constitution doesn't restrict local governments Yes, it does. The Fourteenth and Fifteenth Amendments [1] incorporate much of the Bill of Rights against the states. Local governments are creatures of the state; SCOTUS has long found that local governments have been incorporated against as well. [1] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...

lisper 5y ago

Constitutional protections are never absolute. e.g. yelling fire in a crowded theater, the 2nd amendment and WMDs, or practicing a religion that requires human sacrifice. (Even animal sacrifice might be prohibited, I don't know.)

unanswered 5y ago
> yelling fire in a crowded theater ... is not and never has been an exception to the constitution. It was written as part of a dissent which has been thoroughly ignored and repudiated except by people who don't understand the first thing about US law.
- kube-system 5y ago
  It is technically incorrect (or at least, untested to the current standard), but it's a useful and more understandable approximate than the technically correct "imminent lawless action"... and a lot more palatable than quoting the KKK leader whose case set that standard.
  - anjbe 5y ago
    Yes, much more palatable to quote a decision that used the phrase to argue protesting the draft is a violation of the Espionage Act.
    - kube-system 5y ago
      I can't tell if this is sarcasm, but yes, I agree. That is more palatable than quoting violent white supremacist rhetoric.
- lisper 5y ago
  You are mistaken. It was written by Oliver Wendel Holmes writing for a unanimous court in Schenck v. United States: https://en.wikipedia.org/wiki/Schenck_v._United_States https://en.wikipedia.org/wiki/Schenck_v._United_States Granted that decision was later partially overturned, but the general principle that the first amendment protections are not absolute remains in force, and there are many extant examples: libel laws, laws barring false advertising, and laws against incitement of violence are all constitutional.

kube-system 5y ago

In general, the reason is: https://en.wikipedia.org/wiki/In_loco_parentis https://en.wikipedia.org/wiki/In_loco_parentis While students do absolutely have rights, schools are also tasked with caring with kids (especially during the school day). It's typically at the intersection of these rights and responsibilities where we see these cases make it to SCOTUS.

helen___keller 5y ago

> Its not clear to me why it is permissible for schools to ever punish children for nonviolent speech in the united states The most obvious counterexample would be speech that disrupts education. Why even have schools if one student can choose to talk and yell and disrupt class and not be punished for it?

belltaco 5y ago

She said bad things about the cheerleading team. The team decided to not have her as a cheerleader anymore. The school is a sideshow to all this. She wasn't punished by being put in detention or any other school related activity. Not sure how this is "punishing children".