Freedom of Speech in School and Prison

JurisdictionUnited States,Federal
CitationVol. 85 No. 1
Publication year2021

FREEDOM OF SPEECH IN SCHOOL AND PRISON

Aaron H. Caplan(fn*)

Abstract: Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro level, however, there are subtle but significant differences between the two. These arise primarily from the judiciary's belief that differences exist between the purposes of schools and prisons-although, somewhat ominously, the differences appear even more subtle when comparing schools to jails. Just as judicial beliefs about social reality affect constitutional outcomes, the constitutional rules in turn affect social reality. Courts should be wary of language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy.

INTRODUCTION..................................................................................73

I. MACRO-LEVEL SIMILARITIES................................................75

II. MICRO-LEVEL DIFFERENCES..................................................80

A. Differences in Doctrine........................................................80

B. Differences in Application ................................................... 83

1. Prior Restraint.................................................................83

2. Vulgarity.........................................................................84

3. Defiance of Authority ..................................................... 85

4. Decisions with No Control Group..................................87

C. Differences in Judicial Deference ........................................ 88

1. Scope of Deference......................................................... 88

2. Reasons for Deference....................................................90

III. HOW COURTS VIEW THE INSTITUTIONS.............................94

A. Schools.................................................................................94

B. Prisons..................................................................................99

C. Schools as Jails...................................................................101

CONCLUSION....................................................................................104

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Figure 1 (© Andy Singer; reprinted with permission)

INTRODUCTION

It is the rare public school student who has not at least once complained that her school is like a prison, with the principal as warden and the teachers as guards. The trope of school-as-prison appears regularly in popular culture, most often voiced in a tone of rueful irony. For example, in an obituary for actor Patrick McGoohan, a critic wrote that McGoohan's 1968 production The Prisoner was "the most important television series of my life" because "I was just then working out that my own junior high school was a kind of jail."(fn1) Andy Singer's cartoon succeeds as satire because most people believe that school is not supposed to be like prison. Figure 1. School is supposed to be a site of uplift and optimism, providing students with the mental and social tools to thrive as free citizens. Prison, by contrast, is the antithesis of freedom, a place to quarantine a deviant population for whom our best efforts at education, uplift, and optimism have failed. With these expectations, identifying similarities between the two institutions amounts to an implicit call for change.

By contrast, judicial opinions about freedom of speech compare schools and prisons without irony, and indeed without hesitation. Courts litter their decisions about prisoner speech with citations to decisions about student speech and vice versa. Many judges treat the analogy as if it were innately persuasive, requiring no special justification or explanation.

Michel Foucault would say the judges are onto something. In Discipline and Punish, Foucault traced the historical progression from medieval forms of punishment that exacted retribution on the body of the accused (think torture or public execution) to the modern practice of incarceration.(fn2) The shift was not, Foucault argued, evidence of evolving standards of decency. Rather, a well-developed prison system could simply be a more effective deterrent to wrongdoing by inculcating in prisoners the mental habits of discipline and subservience. Internalizing discipline in young minds is also, he believed, the essential function of the public school. Hence, it is no accident that the prison resembles the school, even down to its architecture: "Is it surprising," Foucault asked, "that prisons resemble factories, schools, barracks, hospitals, which all resemble prisons?"(fn3)

This Article explores the analogy between school and prison in constitutional free speech cases. Is the analogy best understood as a mordant punch line or as evidence that the two institutions share a joint mission? In answering this question, I draw on a body of recent First Amendment scholarship debating the degree to which speech rules should operate differently within government-run institutions than they do in society at large.(fn4) The literature often addresses the trio of schools, prisons, and military bases together as prototypical institutions where speakers enjoy less constitutional protection.(fn5) The government workplace(fn6) and the courtroom(fn7) are also sometimes included. The similarities in judicial treatment across these institutions cause Professor Erwin Chemerinsky to lament that constitutional protections "apply least where they are needed the most."(fn8) Professor Frederick Schauer, by contrast, believes courts should go further in "incorporating institutional realities and demarcations into the First Amendment."(fn9)

A careful side-by-side comparison of speech doctrines for schools and prisons reveals some truth in both positions. Part I compares speech rules for schools and prisons at a macro level, concluding that commentators are correct to note a substantial structural similarity. Part II then turns to a micro-level comparison not undertaken in previous scholarly literature. This reveals that student speech seems to enjoy marginally more constitutional protection than prisoner speech, albeit in subtle ways.

With this description of the relevant legal doctrines in hand, Part III asks what about these institutions-or more specifically, what about judges' perceptions of these institutions-contributes to the similar-yet-different constitutional outcomes. Tellingly, the constitutional rules for speech in school have changed over time, in parallel with the Supreme Court's stated views about the purpose of public education. At times, the Court has seemingly accepted the Foucaultian thesis(fn10) that the goal of a public school is to create uniformly docile citizens; this belief leads to constitutional decisions acquiescing in suppression of student speech. At other times, the Court insists that schools exist to foster critical thinking and individuality, resulting in greater judicial protection for potentially disruptive student speech. A similar dynamic is harder to detect in prison speech cases, most likely because there is no comparable variation in judicial beliefs about the purposes of a prison. However, courts do recognize subtle differences between the institutions of prisons and jails, which raises an unsettling question: does the law treat speech in school the way it treats speech in jail?

This Article concludes with a reminder that institutional sensitivity in judicial opinions operates in two directions. Just as judicial beliefs about social realities affect constitutional outcomes, the resulting constitutional rules affect social reality. For this reason, courts should be wary of invoking language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy.

I. MACRO-LEVEL SIMILARITIES

Schools and prisons share many surface similarities. Both house populations that are relatively homogenous compared to the population at large. Both have clear hierarchies within their staffs, and between the staff and a subservient general population. Both populations have cultures against snitching. Both have cafeterias, recreation areas, and on-site infirmaries. Both limit access by outsiders. But do these similarities of structure reflect a similarity of purpose? Those who presume-or at least hope-that the institutions serve different functions may be disconcerted at the ease with which court opinions analogize between speech in school and speech in prison.

The analogy sometimes reveals itself through the half-conscious process of selecting legal authorities for citation. When ruling on the speech rights of prisoners, judges frequently cite to cases about the speech rights of students. In Procunier v. Martinez(fn11) and Pell v. Procunier(fn12)-two early prison speech cases decided within one month of each other in 1974-Supreme Court opinions cited the leading case on...

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