Don't Kids Have First Amendment Rights?

Kids have First Amendment rights, and they don't shed these rights at "the schoolhouse gate."

Yes, kids have First Amendment rights. Although not equal to that of adults, the U.S. Supreme Court has said that "minors are entitled to a significant measure of First Amendment protection." Only in relatively narrow and limited circumstances can the government restrict kids' rights when it comes to protected speech. (Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).)

• What First Amendment Rights Do Kids Have?
• What Are Examples of First Amendment Protections?
• What First Amendment Rights Do Students Have?

What First Amendment Rights Do Kids Have?

The First Amendment protects adults and kids from government censorship. Except in limited circumstances, government actors—such as public officials, lawmakers, and police—cannot decide what a person can or cannot say or express when it comes to ideas, opinions, and beliefs.

Free speech protections go beyond the spoken or written word and apply to expressive and symbolic speech. For instance, the First Amendment protects:

• the right to protest against the government (for example, at a peaceful protest)
• the right not to speak (for example, refusing to salute the flag)
• the right to engage in symbolic speech (for example, flag burning)
• the right to receive ideas (for example, by reading books and watching videos), and
• the right to express oneself (such as through art, clothing, or dance).

First Amendment protections only come into play when the government regulates or prohibits speech. These protections don't apply to censorship by private companies, private schools, or other non-government actors. (These non-government actors may be subject to other laws, but they don't violate the First Amendment by regulating speech.)

What Are Examples of First Amendment Protections?

When the government tries to regulate or prohibit protected speech, the First Amendment protections kick in. The following are examples of government actions that would be found unconstitutional under the First Amendment:

• a federal law prohibiting speech critical of the President of the United States
• a state law requiring students in public schools to recite the pledge of allegiance
• a state law restricting sales of violent video games to minors younger than 17
• a city ordinance prohibiting pro-Nazi demonstrations in front of city hall but not other groups, or
• a public school disciplining a student for wearing a pro-choice or pro-life t-shirt.

First Amendment protections also extend to offensive speech and hate speech. Even if deplorable and uncomfortable, the point of free speech is to encourage debate and allow dissent and discontent. There are limits though.

Limits to Free Speech: Unprotected Speech

The Supreme Court has held that the First Amendment doesn't protect speech that is particularly dangerous or harmful. The government can regulate—even criminalize—"unprotected speech" without violating the First Amendment. A prime example of "unprotected speech" is child pornography. The U.S. Supreme Court has also found the following to be unprotected speech—true threats, fighting words, incitement to riot, obscenity, plagiarism, and blackmail. So if a person spewing hateful messages about a group incites others to commit violence against members of that group, the hate speech loses its protections.

(Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Brandenburg v. Ohio, 395 U.S. 444 (1969).)

Limits to Free Speech: Speech Harmful to Children

The government also has more leeway when it comes to regulating speech considered harmful to children. For instance, the Court upheld a New York law that prohibited a person from selling sexual materials (magazines depicting nudity and sexual content) to minors, even though the same material could be sold to adults.

(Ginsberg v. New York, 390 U.S. 629 (1968); but see Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011).)

What First Amendment Rights Do Students Have?

Most discussion of kids' First Amendment rights comes in the context of students' freedom of speech and expression in public schools. The Supreme Court has stated that students don't lose their constitutional rights at the "schoolhouse gate."

Students Rights vs. the Rights of Educators

Several Supreme Court decisions recognize that stripping students of their constitutional right to free speech would defeat a primary purpose of education—to prepare kids to live in a democratic society as adults. At the same time, the Court has acknowledged that school teachers, administrators, and staff have a right to manage their school affairs and curricula. Schools also have special responsibilities to keep students safe and maintain a safe environment for learning.

It's where the rights of students clash with the rights of educators that the Supreme Court has tried to fashion a middle ground. And students' free speech rights sometimes take a backseat to the special characteristics of the school environment.

Public schools may regulate the following types of student speech:

• speech that is lewd or vulgar
• speech that promotes illegal drugs
• speech that is likely to substantially disrupt the education of others, and
• speech that is part of the school curriculum or mission.

Below are examples of court decisions regarding students' free speech rights.

(Tinker v. Des Moines, 393 U.S. 503 (1969); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393 (2007).)

Court Decisions Protecting Students' First Amendment Rights

The Supreme Court has upheld students' First Amendment rights in several cases. Below are some of the most important decisions protecting students' rights.

• Students cannot be forced to salute the American flag or recite the pledge of allegiance. (Va. State Bd. of Educ. v. Barnette,319 U.S. 624 (1943).)
• Schools can't prohibit students from engaging in passive political protests that don't substantially disrupt the educational process or harm the safety of others. (Tinker v. Des Moines, 393 U.S. 503 (1969).) In Tinker, a school suspended students for wearing black armbands in protest of the Vietnam War. The Supreme Court held that the school's action violated the students' First Amendment rights. Based on Tinker, lower courts have upheld students' right to wear pro-Trump shirts, shirts reading "Be Happy, Not Gay," and a shirt displaying George W. Bush as "Chicken-Hawk-in-Chief."
• School boards cannot ban books from the library or remove books from open access (such as by requiring parental permission to check out a certain book) just because they dislike the ideas contained in those books. "Our Constitution does not permit the official suppression of ideas." (Bd. of Educ., Island Trees Union v. Pico, 457 U.S. 853 (1982).)
• Schools can't regulate a student's off-campus speech when it's too far removed from the school's special interest in educating students and protecting the safety of the school community. (Mahanoy Area Sch. Dist. v. B.L.,594 U.S. ___ (2021).) Known as the "cheerleader" case, in Mahonoy, a school disciplined a student for posting profane language on Snapchat that was directed at the school's cheerleading program. The student posted the comment from her personal phone while off campus. The Court held the school went too far by regulating the student's off-campus speech, and in doing so, violated the student's right to free speech.

Court Decisions Upholding Schools' Rights to Regulate Student Speech

Below are court decisions upholding a school's right to regulate student speech.

• A school can prohibit student speech that is vulgar, lewd, or plainly offensive. For example, a school can discipline a student for giving a speech that includes sexual references and profanity. (Bethel Sch. Dist. v. Fraser,478 U.S. 675 (1986).)
• Schools may regulate what to teach or not teach as part of their curriculum, which includes speech in a school-sponsored newspaper. In Hazelwood v. Kuhlmeier, the Supreme Court upheld a high school principal's decision to remove student articles discussing teen pregnancy and divorce from the school newspaper. (484 U.S. 260 (1988).)
• Schools may take steps to prevent or censor speech that can be reasonably regarded as encouraging illegal drug use. The Supreme Court upheld a school official's decision to remove a student banner that read "Bong Hits 4 Jesus" and discipline the student. (Morse v. Frederick, 551 U.S. 393 (2007).)
• In the "cheerleader" case, the Supreme Court noted that there were likely instances where a school could regulate a student's off-campus speech, such as regulating social media comments to prevent substantial disruption of learning, protect those in the school community (for instance, from cyberbullying), and prevent misuse of school devices and materials. (Mahanoy Area Sch. Dist. v. B.L.,594 U.S. ___ (2021).)