Note: This is an educational course, not legal advice.
When government acts as a school or an employer, it has special jobs to do, and the Court gives it more room than when it regulates the public in a public forum. A third doctrine, government speech, says the government's own messages are not limited by the Free Speech Clause at all.
| Case | Speech | Rule |
|---|---|---|
| Bethel School District No. 403 v. Fraser (1986) | a lewd speech at a school assembly | schools may prohibit vulgar and lewd speech |
| Hazelwood School District v. Kuhlmeier (1988) | articles in a school-sponsored newspaper | schools may edit school-sponsored speech for reasons reasonably related to legitimate teaching concerns |
| Morse v. Frederick (2007) | a banner at a school event reasonably read as promoting illegal drug use | schools may restrict such speech |
Why it works
Public employees. In Pickering v. Board of Education (1968) a teacher wrote a letter to a newspaper criticizing the school board; courts balance the employee's interest in speaking as a citizen on matters of public concern against the employer's interest in an efficient workplace. In Garcetti v. Ceballos (2006) a prosecutor wrote a memo, as part of his job, questioning a warrant affidavit; the Court held that when employees speak pursuant to their official duties, they are not speaking as citizens, and the First Amendment does not protect them from discipline. Lane v. Franks (2014) held that truthful sworn testimony in court, given outside ordinary job duties, is citizen speech. Government speech. When the government speaks for itself, for example in choosing monuments for a city park, the Free Speech Clause does not limit its choice of message; voters hold it accountable instead. But when the government opens a program to many private speakers, their messages remain private speech, and it may not exclude some because of their viewpoint.
Key idea
Students: speech is protected unless it would substantially disrupt school (Tinker), with limits for lewd, school-sponsored and drug-promoting speech. Employees: protected when speaking as citizens on public concerns (Pickering balance), not when speaking pursuant to official duties (Garcetti).
Worked example: A T-shirt
A student wears a T-shirt with a political slogan opposing a proposed state law. No disruption occurs, and the school has allowed other political shirts. May the school punish her?
- Political expression by a student: Tinker applies.
- No substantial disruption, and no forecast of one based on facts.
- Not lewd, not school-sponsored, not about illegal drugs.
Answer: No; it is protected under Tinker.
Worked example: A memo at work
A city auditor writes an internal report, as part of her job, saying a contract was mishandled. She is demoted. First Amendment claim?
- She spoke pursuant to her official duties: writing the report was her job.
- Under Garcetti, that speech is not protected from employer discipline (other laws, like whistleblower statutes, may protect her).
- If she had written a letter to the newspaper as a citizen, Pickering balancing would apply.
Answer: No First Amendment protection under Garcetti.
Common mistake
Thinking Tinker lets schools punish any speech that some people dislike. The test is substantial disruption, judged on facts, not "undifferentiated fear"; the exceptions (lewd, school-sponsored, drug-promoting) are narrow. Another slip: thinking public employees have no speech rights. They are protected when speaking as citizens on public concerns.