Speech in the Public Sector

• Pages: 199-217
• Author: Daniel A. Farber

199

Chapter 10

SPEECH IN THE PUBLIC SECTOR

In the last ch apter, we saw how the government’s power to

control its own property interacted with First Amendment values. In

this chapter and the next, we will see how the government’s

regulatory power varies with the identity of the speaker, rather than

the location of the speech. This chapter exa mines how the

government’s power over speech is augme nted when the speaker is

operating in the public sector.

Groups within the public sector are subject to controls that

would not be allowed for the public. Schoolchildren, prisoners, and

soldiers are all, in different ways, wards of the state and subject to

especially intensive regimentation. To varying ex tents, the basically

authoritarian regimes of these institutions are inconsistent with the

broad individual freedom enjoyed by the public. The government does

not have the same “parental” interest in the personal conduct of its

civilian employees as of students, nor can it impose the same

discipline as it does on the military. But the government does have a

strong interest in p reventing employees from disrupting the

effectiveness of governmental operations. It has a similar interest in

ensuring that grant recip ients use their f unding to further the

government’s purposes, which are sometimes related to speech. With

varying degrees of success, the Court has attempted to define the

First Amendment rights of each o f these various groups. The most

puzzling problem is presented by the final category, government

grantees, because of the difficulty of separating valid from

illegitimate conditions on government funding.

I. Custodial Institutions

In schools, prisons, and the military, the go vernment has broad

power to regulate individual conduct. Given its custodial authority in

these institutions, it has an unusually broad interest in controlling

speech as well. As we will see, however, its power to regulate speech

even in these special institutional settings is not unlimited.

A. Schools

The Court’s first significant opinion on the rights of public-

school students may have been the high-water mark of constitutional

protection for this group, with successive later opinions retreating

toward greater acceptance of censorship. In Tinker v. Des Moines

200

SPEECH IN SPECIAL SETTINGS

Pt. III

Independent Community School District ,

1

two high school students

and a junior high stud ent were suspended for wearing black

armbands to protest the Vietnam War. An anti-armband policy had

been adopted two days earlier in anticipation of the protests. In an

opinion by Justice Fortas, the Court upheld the right o f students to

engage in at least some expressive activitie s. There was no evidence

that the armbands interfered with school activities, and the Court

obviously viewed the restriction as motivated at least in part by

ideological d isagreement. As the Court pointed out, the school had

not banned any other insignia, including Nazi iron crosses worn by

some students.

The Court put the burden on the school to show that the

armbands posed a concrete threat to normal school activities. Neither

students nor teachers “shed their constitutional rights to freedom o f

speech or expression at the schoolhouse gate.” Hence, according to

the Tinker Court, “undifferentiated fear or apprehension of

disturbance is not enough to overcome the right to freedom of

expression.” To justify a restriction on speech, the school “must be

able to show that its ac tion was caused by something mo re than a

mere desire to avoid the discomfort and unpleasan tness that always

accompany an unpopular viewpoint.” Admittedly, the First

Amendment would no t protect “conduct by the student, in class or

out of it, which for any reason—whether it stems from time, place, or

type of behavior—materially disrupts classwork or involves

substantial disorder or invasion of the rights of others.” But in

Tinker, there was no “evidence that the school authorities had reason

to anticipate that the wearing of the armbands woul d substantially

interfere with the work of the school or impinge upon the rights of

other students.”

Later decisions have been more deferential toward the

prerogatives of school officials. In Bethel School Dist. No. 403 v.

Fraser,

2

a student was suspende d for two days for giving a tasteless

speech at a student assembly. The speech was a nomination address

for a student officer. It was filled with clumsy sexual innuendos of

the kind that might earn a movie a PG-13 rating today. Some of the

students in the audience acted up during the speech; others (who

apparently we re either more inhibited or had better taste) seeme d

embarrassed. The lower courts reversed the suspension, relying on

Tinker. The Co urt u pheld the school’s action. The opinion

emphasized three points: inculcating ba sic social values is one

function of the schools; a “vulgar and lewd speech” could “undermine

1

393 U.S. 503 (1969).

2

478 U.S. 675 (1986).