New Cases Test Landmark Ruling on School 1st Amendment Rights
"The Doninger case was the first court of appeals case to address the Internet," Schoenhorn said. "Her blog was from home, but her statements related to school." The school board's lawyers made a huge leap by saying it was no different from her handing out leaflets at school, he added.
Schoenhorn said the courts have become far less open to enforcing students free-speech rights over the years. "Tinker v. Des Moines is the last time the U.S. Supreme Court ruled in favor of a student in any case," he said. "Since then they have gone the other way in carving out exceptions."
Part of that trend, Schoenhorn said, had much to do with the background of the civil rights movement that existed when Tinker was decided. "Now, it seems the courts don't want to give students too much freedom," he said.
Cases in which courts have ruled against student free speech have included the 1986 decision in Bethel School District v. Fraser, where a high school student in Washington state, Matthew Fraser, made sexual remarks in a speech during a school assembly and was suspended as a result. In its ruling, the U.S. Supreme Court found that lewd speech was not protected by the First Amendment.
More recently was the "Bong Hits 4 Jesus" case, which started when a student in Alaska unfurled a 14-foot banner bearing those words outside his school as classmates watched the Olympic torch get carried down a nearby street. In 2007, the Supreme Court ruled that a student's free-speech rights are not enforceable when the speech promotes illegal drug use.
But students haven't lost all of their attempts to stand up for their speech rights. Last week, a Pennsylvania school district announced it will petition the U.S. Supreme Court to enforce its effort to ban "I [heart] Boobies" bracelets in the classroom.
The bracelets, which are designed to promote breast cancer awareness among young people, have prompted suspensions of students and other disciplinary actions. Two eastern Pennsylvania girls challenged the ban there in 2010.
The bracelets became a free-speech issue in Connecticut last year, when a student at Nathan Hale High School in East Haddam was told she would face detention from school if she wore one of the bracelets.
Sandra Staub and David McGuire, two lawyers with the ACLU of Connecticut, stepped in on behalf of student Sara Dickinson. They cited the Tinker standard in a letter to the school, reminding district officials that the bracelets should be permitted under the law.