Israel’s detractors often use the constitutional guarantee of freedom of speech and the cover of academic freedom to defend their right to engage in hate speech and to propagandize the classroom. Simultaneously they deny others the right to criticize them or scrutinize their work.
Critics do have a right to express their views and to protest, but students also have the right to listen. When speakers come to campus, it is important to take steps to protect the rights of both speakers and listeners while allowing for legitimate criticism either outside events or in question and answer periods.
1. Do Students have the right to freedom of expression in school?
Yes. Under the Tinker standard, students have the right to freedom of expression as long as they do not “materially and substantially” disrupt the operation of the school or violate the rights of others. Chapter 71, section 82 of the Massachusetts General Laws (the Student Free Expression Act) puts this standard into state law. It reads:
“The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school. Freedom of expression shall include, without limitation, the rights and responsibilities of students, collectively and individually (a) to express their views through speech and symbols, (b) to write, publish and disseminate their views, (c) to assemble peaceably on school property for the purpose of expressing their opinions.”
In 1996, the Supreme Judicial Court of Massachusetts held in Pyle v. South Hadley School Committee that the statute “is unambiguous” and protects the rights of students as long as their expression of views is not disruptive. The Act therefore protects T-shirts which could be considered “vulgar,” but which do not disrupt the educational process. The Pyle decision gives Massachusetts students the broadest free speech rights in the country.
2. So can I say or publish anything I want in school?
No. Students’ First Amendment rights are not absolute. For example, you cannot say or publish hurtful lies about people. This is called slander (if you say it) and libel (if you publish it). You can be sued for both. The law on libel, however, is different when the person you’re discussing is a public figure like a politician.
The law is also different when a student’s speech is “school-sponsored,” as in a school newspaper or play. The Fraser and Hazelwood cases, decided in the 1980s, gave school authorities in most parts of the country (but, thanks to the Student Free Expression Act, not in Massachusetts), wide discretion to censor anything which could reasonably be considered to be part of the school’s curriculum. Lower courts around the country have differed as to when non school-sponsored, private student expression can be censored.
Finally, just like the rest of society, students must obey obscenity laws.
Taking Preemptive Measures
- Alert the administration about upcoming speakers and ask for a statement endorsing the guest’s right to speak and students’ right to hear their views. Have the administration make clear the punishment for violating these rights.
- Contact campus security and discuss responses to any demonstrations or interruptions.
- Let organizations that may protest know that they will have an opportunity to ask questions at the end of the talk, but inform them students they will be arrested if they interrupt the speech
Presented by the American Civil Liberties Union of Massachusetts