With the wave of activism among American’s youth, I find that I’m getting calls from students, and their parents, about what free speech rights students have at school, and outside of school.  In the past, I've been involved in research and litigation involving the free speech.  During law school, I had the honor of working as a research assistant for Professor Robert Bastress who subsequently published a book on the West Virginia Constitution.  The first case that I argued at the West Virginia Supreme Court addressed the free speech right of the student body president to intervene when security officers began arresting students at a football game.  Since then, the laws have changed a little, but the fundamental meaning of the first amendment remains solid.

          Let’s start by looking at The First Amendment:  what it says and what it means. 

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

            This amendment, the first of the Bill of Rights, provides for five separate freedoms:   religion, speech, press, assembly, and petition.  The First Amendment is very broad, and most scholars agree that it creates greater protection of speech and the press than the ancillary law in any other country.  The first amendment is founded on the idea that democracy is the enactment of the voice of the majority and that we can only ascertain that voice when there is a free and open sharing of ideas, the free expression of thought. In the U.S. Supreme court case, New York Times v. Sullivan, the court said that the first amendment creates, “a kind of “uninhibited, robust and wide open” discourse in our society. The First Amendment is broad enough to protect vulgar and sexually explicit speech and even “hate speech” so long as the speech does not incite illegal action. 

Who Can Restrict Speech?

            One thing some folks get confused about is that the Bill of Rights, including the First Amendment, is a list of rights that we, the people have that the government cannot take from us.  The first amendment prohibits the government or the state from restricting speech or from punishing a citizen for exercising their free speech.  It does not apply to private companies, publishers or even families.  In other words, an organization that is not government funded can restrict the speech of its members.  A publishing platform, such as Facebook can prohibit obscene speech or hate speech.  When a student wants to speak out to promote changes in government gun laws through a self-funded newspaper or blog post, the government cannot infringe upon that opportunity. However, if the same student has an opinion they want to articulate on facebook, facebook can prohibit it.  The first amendment only applies to government action.


             As simple as it seems, there is also a question about “What is speech?”  Talking, words, writing, are all speech.  This blog post, the sign at the protest march, the words on your sweatshirt are all speech.  Even "non-speech" such as  words, actions, and symbols are "protected speech."   Justice Louis Brandeis said it best in1927:  the “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”   Clothing with messages, symbols, such as armbands, and acts, such as being silent during the recitation of the Pledge of Allegiance, have all been construed as being expression and therefore free speech. 

On March 24, 2018 an estimated 800,000 people marched in DC, many of them students, to express their opinions on guns in the schools.

On March 24, 2018 an estimated 800,000 people marched in DC, many of them students, to express their opinions on guns in the schools.


            Just like most other constitutional rights, the right to free speech is not absolute.  Sometimes the government may restrict speech.  A valid restriction must be narrow, limited, and geared towards protecting an important public interest, such as safety. Restrictions must be “content-neutral.”  A law may not restrict speech based on the content of the speech. Permissible restrictions include reasonable time, place and manner restrictions.  Those restrictions, that promote a legitimate government interest, include ordinances that require permits for demonstrations or limit the ability of a demonstration to impede traffic. Another example of a valid restriction is a  "gag order" that restricts the ability of jury members to speak out during a trial.  In that situation, the government interest is protecting the integrity of the judicial proceedings. 

           A famous types of restrictions on speech is "speech by its very utterance that causes harm."  Most of us have heard of the later in the context of the prohibition of yelling "FIRE" in a crowded theater.  This type of speech  is prohibited since once it is spoken, the harm is likely to occur before there is any time to respond.  Everyone would run out of the theater, and many people could be harmed.  "Fighting" words are this category that was articulated in the U.S. Supreme Court case of  Chaplinsky v. New Hampshire in 1942.  "Fighting words" are the type of "face to face" comment that provoke an average person to retaliate and therefore incite a breach of the peace.  Both of these restrictions can be difficult to define and often rely on context to determine whether or not the value of the speech exceeds the potential harm.


There are really three things to look at once you decide that the act or speech is free speech.

Students also marched in local communities, including nearby Winchester, Virginia

Students also marched in local communities, including nearby Winchester, Virginia

  1. The first question is to determine who is limiting the speech.  The first amendment only applies to stop the government from limiting the dialog, not private individuals.  If the speech is occurring someplace other than school, it may not be protected speech.  If the forum is a private meeting or publication the owner of the publication has the ability to create restrictions.  If the speech is occurring at a private school, that does not receive any federal funding, the school may be able to limit the speech. 
  2. The next question is to evaluate whether or not the speech is occurring in a time, place or manner that might impact the public adversely.  If the speech involves demonstration, are the proper permits obtained?  Will streets be clear? 
  3. The last question involves a determination as to whether or not the speech incites an act that may be harmful before there is time for response.  The government can restrict the language only when there is a significant potential of harm to the public prior to having an opportunity to respond to the speech.

So, yes--most of the advocacy by the students is going to involve free or protected speech.  In many ways the activists are initiating the very type of discourse that the court in Sullivan described as being necessary to democracy.  However, the standards for the limitations on speech in public, in public schools and in private schools is different!  In an upcoming post, I'll detail those differences.   In the meantime,  contact us if you are interested in having our office provide a free educational workshop on these and related constitutional issues to your school or community non-profit group.