"Zero tolerance" for free speech

Journal of Law and Education, Apr 2001 by Hils, Lynda

I. Introduction

In the aftermath of the violence that has recently taken place in America's schools has come a resurgence in a "zero tolerance" attitude by school administrators. At first, "zero tolerance" policies were initiated as a means to combat the growing problems of drugs in schools. Later, weapons became the target of these policies in order to disarm the increasingly violent environment in the classroom. Now there seems to be a trend in schools that looks predominantly more like "zero tolerance" for speech, more specifically an intolerance for any kind of speech that could be deemed threatening.

In theory, a "zero tolerance" policy for speech deemed to be threatening could help rid schools of potentially violent students. Unfortunately, the downside is that these same policies could stifle a young voice that may be crying for help, or trying to show society its inadequacies, or merely expressing anger through creative expressions. Thus, a zero tolerance policy could be infringing on a student's freedom of expression. This Chalk Talk will briefly explain the development of First Amendment law as applied to primary and secondary schools and the "true threat" doctrine. Then, it will provide cases that illustrate the trend in schools towards "zero tolerance" for threatening speech. Finally, it will provide a "First Amendment friendly" framework for determining when schools should discipline their students for threatening speech, as well as policy considerations in making this determination.

II. "True Threats" and the First Amendment

The First Amendment of the United States Constitution states "Congress shall make no law ... abridging the freedom of speech." Restrictions based solely on the content of speech are considered invalid under the First Amendment. However, the Supreme Court has recognized certain exceptions to this rule and has held that speech that falls under one of these exceptions may be regulated by the state.' One category of speech excepted is that of threats, which are generally not protected by the First Amendment.

The "true threat" doctrine has developed through various cases from the federal circuit courts and the Supreme Court.' Two cases in particular provide some guidance for determining when threatening language constitutes a "true threat." In Watts v. United States` the Supreme Court held that Watts' statement "If they ever make me carry a rifle the first man I want to get in my sights is L.B.11" was political hyperbole and therefore did not constitute a "true threat."5 "Watts suggests that 'a communication which an objective, rational observer would tend to interpret, in its factual context, as a credible threat, is a "true threat,"' which may be punished by the government."'

The "true threat" doctrine has also been applied in the context of student expression in Lovell v. Poway Unified School District.7 Sarah Lovell had allegedly threatened to shoot her school counselor if the counselor did not grant Lovell's schedule change. The standard applied was "whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault."8 However, the alleged threatening statement should be taken in context in order to determine whether it is in fact a "true threat." In Lovell, the court determined that the increase in school violence was a significant part of the context in which the allegedly threatening statement should be interpreted.9 Thus, in this context, it was reasonable that the statement could be considered a "true threat" and, therefore, it was not protected under the First Amendment. This determination by the court allowed it to ignore decisions by the Supreme Court regarding the protection afforded to a student's freedom of expression.

III. Supreme Court Decisions on Student First Amendment Rights

The Supreme Court has developed a framework for evaluating to what extent student speech should be protected. In the landmark case of Tinker v. Des Moines,10 the Supreme Court stated that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."11 In Tinker, the Court held students' First Amendment rights were violated by a school policy forbidding the wearing of black armbands in an effort to protest the Vietnam War.12 This decision reinforced the principle that First Amendment protection is not only provided to popularly supported speech, but also to unfavorable speech, which perhaps needs the greatest protection.13 In addition, the Court pointed out that an "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."14 Nevertheless, a student's freedom of expression was limited to the extent that could not "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school" or could "impinge upon the rights of other students."15 Thus, the case does leave the door open for schools to place some restrictions on a student's freedom of expression.