Debating Campus Free Speech | Lee Rowland, ACLU | Lincoln-Douglas

Hi everyone. Welcome to the National Speech and Debate LD webinar. My name is Kate Gaviano and I work with high school students on exciting projects like this every day here at the Li Rights Institute. Tonight we’ll be discussing the NSDA LD resolution results. Public colleges and universities in the United States ought not to restrict any constitutionally protected speech. With us tonight is Lee Roland, senior staff attorney and speech privacy and the technology advisor at the American Civil Liberties Union at the ACLU. At the ACLU, Lee serves as the lead council and federal first amendment cases. She’s a graduate of Mbury College and Harvard Law School where she served as president of the Harvard Defenders and staff the Harvard Human Rights Journal and the Harvard Black Letter Law Journal. Just a little bit on how we’ll operate tonight. Um, Miss Roland will give an approximately 20 minute presentation. After that, she’ll spend the remainder of the time answering your questions that you’re going to submit in the top chat box. Uh feel free to submit questions throughout the address. Uh she’ll get to them um as soon as she’s done this presentation. Um any nonquests, any other webinar uh related chat or questions for me or questions for your um fellow webinar participants, keep those in the bottom chat. Uh without further ado, I’ll introduce Miss Rollins. Hello to everyone who’s joining us tonight. Um, and the first thing I want to say is thanks. You guys are voluntarily engaging in expanding your knowledge about constitutional rights and civic participation. And I think that’s awesome. Uh, now let me give you my caveat, which is you guys are debating the question of whether or not public schools and universities should permit all constitutionally protected speech. And I am certainly not a neutral observer on that question. I am a free speech attorney and uh the answer to that question for me is a pretty unequivocal yes. And in fact, my job by and large consists of suing uh government schools in court when we believe they restrict speech that should be protected by the constitution. Um so I feel like it’s very important to let my biases out front so you know the messenger that you’re dealing with. Um, but of course there’s a lot to talk about here that’s really interesting and I know as a general matter um, you guys probably have not taken any law classes. So I will do my best not to make this wonky. But one thing I invite you to do is if I talk too fast or I use legal ease by accident or I talk about a legal concept um, and you you want me to unpack it or go a little slower, just let me know. Uh, just let me know. I can I can see and Kate can flag for me in real time um if there are questions or concerns. So, let me start uh by telling you a little bit about what I do here at the ACLU um because it’s pretty relevant to the question at hand. Um as Kate mentioned, the program I work for at the National ACLU is called the Speech Privacy and Technology Project and we are one of the many projects at the

National American Civil Liberties Union, which we call ACLU. Um, and the ACLU is the nation’s oldest and largest nonprofit law organization. Um, and we are dedicated to protecting the principles in the constitution, the bill of rights. Uh, foremost among that bill of rights is the first amendment to the US constitution. I focus on one part of that first amendment, which is the right to free speech. I’m a free speech attorney. Um, and part of my job is to defend people, including students, who believe that the government has violated their free speech rights. So, as I said, again, not neutral on this topic, but I will do my best to answer all your questions truthfully and fairly um because sometimes uh the Supreme Court or other courts disagree with me. So, um you don’t have to take my crazy word for it. It’s not exactly how the world works. Um but I Oh. Hope I can convince some of you that putting the sum on the scale of more speech uh is often a really good idea in addition to a constitutional mandate. Okay, so let’s try to answer the debate question. Should public schools allow all constitutionally protected speech? You know what I would say? Uh but let me try and unpack a little bit of the history of student speech rights. um and how I hope you guys are thinking about

this both from a legal point of view but also philosophically. You know, what role do we want schools to play? That really is a big picture that’s going to underlly any everything I’m going to say to you. So, I’m going to start with my pocket constitution of the United States of America. I hope you all have one. Um if you don’t, you can actually get a free one at aclu.org. So the constitution itself uh as you probably know is a large document that we have changed over the course of history. And the first big change to the constitution is the bill of rights. The bill of rights is just a fancy name for the first 10 amendments to the constitution um that were passed uh basically right after the constitution in 1791 and are really considered kind of part of the original documents at the founding of our country. And I like to think there is no mistake to the fact that the first amendment protects what it protects. Um it says Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceibly to assemble and to petition the government for a redress of grievances. One just note on the history um is that Congress has since been interpreted by the court to mean government and that’s any government whether that’s a local government so your local school board whether it’s a county a state or the federal government. Um and so all of you as students are also beneficiaries of the constitution. Uh you have rights with respect to your government. Now that also means that if you go to a private school, the actions of your private school are not constrained by the constitution. The first amendment places limits only on government actors and of course not everyone goes to a public school. So the first thing to just understand in a big picture sense is that private schools and public schools uh have very different rules of the game. So let’s see, we’ve already got a question from Emma that I’ll try and work in here, which is by attending these public schools, would people not imply their agreement to limit their free speech? Um well, it’s a really interesting question, Emma, because actually my impression is the opposite. because the constitution authors individual protections. If a public school limits your free speech rights in a way that could violate the constitution, um you may have a remedy for that, but that’s not true if you go to a private school. If you go to a private school, your teachers can say, “We don’t discuss this topic here. Um I don’t want to hear this point of view. Uh you have detention for that opinion.” Um and when that happens, guess what? You can’t go to court on a first amendment theory because your school is not the government and the government only protects you from censorship by the

government. I mean the first amendment only protects you from censorship by the government. So really what it means is that um when you go to public school you actually have more constitutional protections because the person who’s doing the teaching is the government. Um and by the way there are parallels for this in non-school contexts and I lived in Nevada for many years. So, the the big one that was obvious to me is something you guys probably aren’t homeowners yet, but I bet you’ve heard of something called homeowners associations or HOAs. And those are basically privatized neighborhoods. And um under the First Amendment, you have a right to put up a sign in your yard. But let’s say you move into one of these semi-private neighborhoods and your neighborhood homeowners association says no signs in your yard. Well, they’re not the government. So there are ways in which when we um act in private, right, when we give power to private actors and put ourselves under their control, whether it’s a private school um or a kind of privatized neighborhood, we actually lose some of those protections in the Bill of Rights. So, um, as a as a product of the public schools and somebody who I’m sure you won’t be surprised to hear was quite mouthy myself, um, I was always very very glad that I went to public school because I knew that there were limits on how much my school officials could censor me because the first amendment comes into play. Okay, so I read you the first amendment. Um, and the first amendment actually is a pretty modern phenomenon in terms of applying to us as individuals and stopping the government from uh invading our rights and censoring us and silencing us. It really wasn’t until the beginning of the 20th century, really even later, the 1920s and the 1930s where the Supreme Court started to grapple with what the First Amendment means. Um, does it mean that we as individuals can stop the government from censoring us? And and I think hopefully you guys all know now that the answer is yes. Um but that wasn’t obvious uh in earlier years of American history. It took time for the Supreme Court to figure out what it thought the first amendment meant. Um I’ve already given you one hint which is the first amendment um I mean the the word Congress in Congress shall make no law at the beginning of the first amendment has been expanded to all governments. So when we say your first amendment rights, we mean, you know, whether it’s the public dog catcher or the president of the United States, those people can’t censor you. Okay? Um, now the first amendment is modern, but I’ll tell you what’s a heck of a lot more modern, and that’s the first amendment applied to students. And we had a huge breakthrough in the late 1960s uh, in a case called Tinker versus De Moines. And De Moines is a city in Iowa that had a school public school system. And uh in the mid60s uh a student named Mary Beth Tinker um and her brother and some other students decided that they wanted to protest the Vietnam War. Uh if you haven’t heard of it, it was a major war that we were involved in um in Asia in Vietnam. And

uh there it was a very controversial war and the students opposed it and they got together and they decided to wear black armbands to class over their clothing uh to symbolize the what they perceived as the needless death of soldiers. And Mary Beth was uh somehow somebody figured out that this was their plan. I think they had a public meeting that somebody heard about. So, the school immediately passed a no armband policy and Mary Beth and her brother um despite the school’s attempts to say no armbands wore those armbands to class the next day and the school disciplined them and they filed a first amendment lawsuit and said, “You know what? um this first amendment thing, this applies to students too. And Mary Beth has every right to passively, and by passively I mean she wasn’t shouting or disrupting class, um to passively express a political opinion. That case made it all the way up to the Supreme Court in 1969 and Mary Best Tinker won. And that case has become so famous that the name Tinker is literally synonymous with student speech rights. And so if you practice in the first amendment, as soon as you say tinker, that magic word, um people know what you’re talking about. And Mary Beth Tinker, by the way, uh is still alive very much so. Uh and she is still a First Amendment advocate. She is awesome. And she actually travels to different schools and answers students know your rights questions kind of how I’m doing now. And in really encourages students to be more politically active and to speak out more to embody the rights that she fought for. She’s a very cool lady whom I respect a lot. So Tinker is the big deal. That’s the high water mark. It’s 1969. The Supreme Court says something really really famous in that case. And they say it it can’t be argued with a straight face. That’s not a direct quote, but it’s pretty close that either students or teachers lose their constitutional rights to free speech and expression at the schoolhouse gate. And that is again that is just monumental. That is that is a new thing in America that the Supreme Court said this first amendment thing it applies within the schoolhouse gates. And that phrase is is really important and I’ll come back to it in a little bit. So we have since 1969 been working out what exactly this Tinker decision means. And in the heart of Tinker, there are some lines once it establishes the fact that the First Amendment applies at least in theory. It then says, “But the First Amendment looks a little different when we’re at school.” And the reason is because the government’s not just serving as the government. Um it’s also trying to educate people, right? There’s a job there. Um, so the Supreme Court said, “We acknowledge that there are first

amendment rights and there’s protected speech, but we also have to balance that against the ability of the school to function, to do its job, to have kids learn.” And so there the Tinker effectively sets up a test that will form the basis for the rest of student speech rights that is called the substantial disruption test. And the substantial disruption test basically says that at least for political speech, that is speech that is expressing an opinion, right? You’re not just hitting someone or saying something vulgar, and we’ll talk about that later. Um, when you express a political opinion, by default, it’s protected by the First Amendment unless the school can show that you’ve substantially disrupted the school day. Okay? So, please remember that phrase, substantial disruption. um because that’s going to kind of underly everything else we talk about from 1969 until we got here. Okay. So, I want to just take a quick pause and say something about philosophy rather than law. I mentioned that the Supreme Court when it started thinking about how to assess Mary Beth Tinker’s speech rights, it said, you know, the First Amendment is going to look a little different in this context. Well, this is something that I think will really underpin a lot of the debate you may make and the arguments you may make is is rather than the kind of legal arguments, it’s it’s the should arguments, right? Like what role do we want the school to play? And and here’s what I want you to think about. When you go to a public school, the government plays two roles. And the government is playing two roles. One is it’s the government because it’s the government, right? It’s the department of education. It’s the county school board. It’s the government. But its second role is to keep kids safe and make sure they get an education. Um that’s not really what government usually does. That’s a really different character. It’s a completely different role, right, for the government to be playing, for the schoolboard to be uh playing. They have to keep you safe. They have to make sure you aren’t uh harassed based on your race or sex or age. I mean, all of those are federal laws as well. Um they have all these duties that and they have to ideally get you out of there with an education, knowing how to read. Um so it’s actually a tall order, right? and and that’s a very different role for the school um whether it’s educating you as opposed to what we think of the government usually doing which is regulating our lives providing a service. So what you see reflected in this tinker opinion from a philosophy point of view is the the court the lawyers on the court grappling with this right that sure there is this first amendment right but are are government schools really purely government? No they’re also schools right? So this is not unique to the school environment by the way and some of the trickiest questions in first amendment law come together at the point where the government is playing that

dual role. So, for example, public employees. Um, what about your, you know friendly uh, person who works at the post office, right? And delivers your mail. Um, a government employee, but also their job is to make sure you get mail, right? So, if they say, “I’m going to strike and I’m not going to deliver mail and that’s my first amendment right.” Um, probably that’s not going to be protected because their employer can’t function if their employees won’t deliver the mail. So, you actually see that for public employees whose employer is the government, they also have some first amendment rights, but it’s also a hybrid or a compromised first amendment right when the government is playing that dual role exactly like students. So there are all these ways and by the way the post office is another example. Um they’re they’re the government but their fundamental job is to get a job done and deliver your mail. So you can’t just have your protest in the middle of the pro of the post office where people are waiting in line, right? And and that may make sense on a on a common sense basis, but philosophically it’s important to understand that these are actually really tough questions for the courts because we have this purist idea that the government shouldn’t censor you. But then there are these situations where the government isn’t really playing government. It’s playing teacher, it’s playing employment, it’s playing post office, right? So, um, so that’s the kind of philosophy that you see coming out in Tinker. And I think it’s really the tension that’s going to underly the rest of these cases that I’ll tell you about in a little bit. But I would break them down into two, at least for me, really interesting questions that we’re still trying to resolve. One is what is substantial disruption, right? And the other is what are the schoolhouse gates? And with the schoolhouse gates, the reason I mention that is because there was something that didn’t exist in 1969, and I’m guessing you’re all smart enough to figure out what that might have been. It’s the internet. And so a lot of debates about student speech and I hope you guys will ask some rich questions in this area. It’s really developing and fascinating is where does the government’s ability to censor your speech because you’re a student. Where does it stop? Does it stop when you physically leave the schoolhouse gates or does it continue sometimes when you’re on Facebook or using a school device? Right? Um these are really thorny questions. I think I know what I think the answer should be. Um, but they’re definitely not all settled in the courts. So, I’ll give you a quick overview. Um, but this is a really ripe area to ask questions. Um, because there are so many cases about this now uh that that look at the details of how much authority the school has when you’re not in school, right? When you’re on your personal time, when you’re on your digital time. Okay. But I’m going to turn to the other one first. it’s a

little drier. So the first question is what does disruption mean? I think the first and the easiest thing um to answer is to talk about something like bullying or harassment um or discrimination against a student because of their race uh because of their national origin, a disability, um their sexual orientation, uh I hope I didn’t miss any protected classes. I apologize if they or their religions. I forgot one. Um federal laws absolutely require schools to ensure that students, and by the way, a lot of those um, laws are themselves rooted in the equal protection clause in the fifth and 14th amendments. Uh, so the 14th amendment, although it’s outside the bill of rights, is also a really important one because it makes sure that all of us get treated equally by the government in the law. And so the first thing that’s really easy to slice off about what is disruption is anything that would discriminate against a student or create a hostile environment for that student that impacted their ability to learn because they were black or because they are female or because they are gay. Any of that kind of speech is automatically going to be considered substantially disruptive by the courts. And Tinker itself, by the way, is even even though Tinker itself predates some of those federal law protections, was psychic enough to realize that part of disruption is interfering with other students rights. So, that’s a really easy one. Okay. One of the first kind of black and white questions, what is disruption? Um, or what constitutes substantial disruption? The first thing that isn’t that fuzzy is anything that is discriminatory against another student. So, if you use a racial slur in school, um, or kids pick on someone because they’re disabled, whether it’s just speech or not, that speech is not going to be protected from discipline by the school by the First Amendment. Full stop. I don’t know of a case that would disagree. Um, but of course, these questions get a lot harder. So, there are, I think it’s fair to say, uh, at least three major buckets. buckets is a weird word but categories of of how the Supreme Court how the courts the federal courts will look at first amendment rights depending on the context in which students speak. Okay. So the first is really the just the kind of big picture tinker standard that I set out for you. And one thing I want to highlight is armbands. Okay. I you know what I should have said this first and I apologize that this the first amendment although it says freedom of speech actually protects more than just blah blah blah out loud words that come out of your mouth. Okay. Um this is speech, right? This is writing. It’s written down, but that’s speech. It’s political speech. I

agree with it. It’s protected. If I get on the sidewalk and I hold a poster that has the words of the Constitution on it or even better words of the ACLU, okay, I I may not be speaking that, but that’s protected. There’s also something that’s called symbolic speech, and the Supreme Courts have recognized that there are times where we do things that the political message is so obvious that even though we don’t say it out loud, it’s still considered speech. Mary Beth Tinker’s armband is one of those things. Um, you guys have probably heard of other versions. The most controversial I can think of is burning the flag, uh, which the Supreme Court has ruled, uh, is a protected form of speech. Okay? So, there is something even if you’re not saying something out loud, it may still be protected by the freedom of speech. And I think you probably knew that, but I felt like I should say it. So, in Mary Beth’s case, she wore this armband to school and into class. Now, we’re talking about disruption. So, I’m guessing that if somebody stands up and says in class, I’m protesting the Vietnam War. And let’s say you’re in the middle of an algebra lesson. That’s disruptive, right? And the school under the tinker test could punish, let’s say, send to detention. It might be a little harsh, but a a student who got up in class and interrupted a lesson to protest the Vietnam War. Mary Beth’s black armband didn’t say anything to interrupt that algebra lesson, right? It was it said everything the exact same thing. It expressed the exact same political message, but it sat there silent on her arm just kind of letting people know that she had this opinion. Um, but uh at the end of the day, algebra lesson could go on, right? So there is no coincidence that Mary Beth’s political speech was permitted in class because it was not out loud words. Right? So the first kind of big bucket or category to think about is what can you do in class? And the answer is not a lot. Right? You have no right to kind of take over the lesson and share your feelings or opinions instead of the teachers. Right? The first job in that classroom is to make sure you get an education. That’s where disruption is going to be found really quickly. Okay? Uh it’s going to be found a lot less quickly when you’re in the hallway and um it’s going to be found far less quickly when you’re outside of school altogether, although there are some exceptions. So that’s the kind of first big picture bucket is disruption in class or curricular time. Um, and Mary Beth’s case is a really great um, example of that because by engaging in symbolic speech that was itself silent, she gained a broader first amendment right to bring that into the classroom because it was non-disruptive speech. Okay. Um, and by the way, just one fertile area for questions if anyone’s interested is what does that mean for school uniform policies? Uh, I have

actually taken I have represented students in taking school uniform policies to court. um not always with great results, but I’m happy to answer if anybody wants to ask questions about that. Okay, so that’s the kind of big picture Tinker thing and Tinker’s in the background of all of this, but the Supreme Court has put a finer point on a couple areas of student rights since the Tinker opinion. Okay, so I’m just going to do these quickly, but I’m delighted to answer questions if you guys have more of these. The first is a case called Frasier. Um, and it it not particularly important. Um, but it it basically made a distinction between the kind of political opinion uh or political speech that Mary Beth Tinker engaged in and vulgar speech. Um, this was a student who got up during a school assembly and um made some really very sexual innuendo type jokes. uh kept kind of using double entandras during his speech and it was obvious that he was kind of making references to masturbation. every student was laughing and the school disciplined him and again amazingly kind of because of its subject matter went all the way up to the Supreme Court and the Supreme Court said um look when it’s vulgar and not political speech we’re much more concerned about the you know school’s role of government and ability to teach and even though it was at an assembly and it wasn’t during class time it’s just inappropriate for students to be subjected to that kind of vulgar speech in an assembly setting. So that’s okay. That’s not protected. Um, so that’s the kind of first, you know, non-tinker bucket I’d mention is this Frasier bucket. Uh, then there’s the next category which is called Hazelwood. That’s the name of that Supreme Court case. And Hazelwood involved a studentrun high school newspaper. And the students picked a fairly controversial topic uh to write about. And the school it again these were the students words the students speech um and the school censored two articles and refused to print them and the students took their school uh to court and again went up to the Supreme Court and the Supreme Court said well this is different because the school maintains control of this and anytime it’s more of something that the school is trying to get across to students they have a lot more leeway to regulate that content even if the speakers themselves are students. So, it found that the school could censor those students. Um, and then the last category I’d mentioned, I don’t even know how to describe it. I think I would say absurd speech. And in some ways, it kind of bridges the gap between these two questions. We’re I’m just a reminder. We’re leaving, we’re ending the question, what is disruption? Um, and we’re going to transition into my final topic, which is what is the schoolhouse gates, which I think actually today is one of the most interesting questions. Well, this very weird case um kind of bridges the gap and and is philosophically gets us into both territories. This case is called Morsy Frederick. Um it’s only from about 10

years ago. And in this case, a school high school students were let out at a half day uh to watch a local parade of some kind. and a student who lived close to the school um had made a banner that he held up when the parade or procession went by and that banner said um bong hits for Jesus. That’s it. That’s all it said. And perhaps unfortunately this case went up to the Supreme Court and when asked what it meant, the student said it was kind of nonsense. It was absurd language like he referenced drugs. Bong hits is is a way to talk about smoking marijuana. Still illegal at the federal level. Um and he referenced Jesus, but it was kind of a hodgepodge. He didn’t really he was trying to be funny or weird, right? Well, this ended up in a really weird decision where the Supreme Court said, “Yeah, that’s not protected.” Um we’re not sure exactly why. Uh but it’s even though it was off campus, technically it was right next to the school and the students were let out half day early to go to this. So we think of the school still having jurisdiction over the students. Secondly, we think that referring to illegal drug use is kind of sort of like the vulgar speech in Frraasier. So we’re going to say it’s not protected. People still wonder what Frasier what Morsy Frederick is going to mean in the future and so far it hasn’t had a lot of impact other than it’s not generally protected for students to talk about illegal drug use. That being said, I think it is completely different to say, “I want to take a bong hit or Jesus should take a bong hit and to say something like our drug policy is racist and we should change it.” I think the latter is a um is a political statement that should be protected under Tinker. So, it’s not just like a reference to illegal activity is alone should make your speech unprotected under the First Amendment. It said he seemed to be encouraging drug use. So, that’s a very weird case and it’s hard to learn lessons from that. Uh but I will tell you for a while it was very common um for first amendment lawyers to have bong hits for Jesus bumper stickers on their cars just for the sheer absurdity of it guilty as charged. Okay. So um now we’re going to turn to well actually if everyone will be patient with me for about 10 seconds I’m just going to scan the queue and see if we have any questions that go so nicely into this part. Um, we have questions about religious speech and hate speech and I actually think those might be nice to work in right now. Um, so Janine asks whether religious speech is protected in the constitution and the answer is absolutely. Both religion and speech are separately protected in the first amendment. So religious speech is protected. But just because it’s protected, it’s still subject to all these same rules as anything else. So just as saying I oppose the war in Vietnam would not be protected in the middle of algebra class, getting up and reciting your religious beliefs would not be protected in the middle of algebra class. Not because of your particular religion, but because it’s

disruptive. So it’s not like you get a special exception or get out of first amendment discipline free card because what you say is religious. It doesn’t kind of, you know, jerryrig the results. It doesn’t it doesn’t change the outcome. So, it’s certainly protected, but it would still be subject to all these same rules. Um, what I will say is that there’s a pretty famous First Amendment case um at the college level about whether or not a religious group could use a public school’s facilities after hours. And the school said, well, there’s this other clause that says we shouldn’t establish religion. That’s called the establishment clause. It’s also in the First Amendment, even though we’re not really talking about it today. And they said, ‘Well, so we can give these rooms to everybody, but we can’t give it to the Christian club because if we give it to the Christian club, then it’ll look like we’re endorsing Christianity. And that went up to the Supreme Court. And the Supreme Court said, “No, no, no, no, no, no. Religious speech is one type of speech. And if you’re allowing speech, it’s because you’re allowing private speech, right? You’re allowing students to express their opinion. If you offer school rooms for people to use and organize, you have to offer it equally. And that means regard regardless of religion.” So the answer is yes. Yes, but it’s kind of a qualified yes in the sense that religious speech doesn’t have different protection than other speech in the school environment. It would be the same analysis. And the other question was about hate speech. Um, and I I would just go back to my first comment about uh harassment and discrimination. That kind of stuff is never going to be acceptable in school. Um, now there may be tough questions about when it’s acceptable out of school, and that’s we’re turning to now. Um but as a first amendment attorney uh so so far if there’s anything you remember today um probably I would pick Tinker right that you would remember that stu student speech rights are basically synonymous with Mary Beth Tinker’s last name and that everything changed in 1969 and students got real constitutional protection. But if you remembered a second thing that I say today, here is the second thing I’m going to say. Hate speech. The phrase hate speech does not have a settled objective meaning. Hate speech is not something that you can write down with bullet points and say hate speech means the following words or the following ideas. Hate speech is speech that is completely protected by the first amendment but that offends you. That’s how people use the the phrase hate speech. Right? So, as a first amendment attorney, I have to be really careful about using that phrase because hate speech can be used by people to mean very, very, very different things. Um, for, for example, some police officers, uh, they believe that Black Lives Matter, um, is a group that engages in hate speech. Um, there are people who strongly disagree with that, including me. I think it’s a phrase that can really be abused. Um, so I have a duty as a first amendment attorney to give you that message. That being said, in the school context, anything you’re probably thinking of as hate speech, which is usually something that is hateful towards someone because

of something about them, often their race or their gender or their sexual orientation. Any of that is going to fall under the category of the kind of discriminatory speech that the school has a duty to root out. Right now, it doesn’t necessarily ma mean that they would punish the student speaker in every instance, but they do have a duty to create a free a safe atmosphere where students aren’t subjected to hostility. And that’s true across the board, but particularly true when it comes to hostility directed at them because of a protected class like race or sex. Okay. Um, so now we’re going to turn to the final topic I want to talk about before we do questions, which is what is the schoolhouse gate? And I expect that we’ll have a lot of questions on this topic. So I’m going to go really quick to make sure we have more time. Um but basically it is a really really open question and different courts across the country have come up with really different answers and the reason is the internet has just thrown everybody for a loop. There are students now who get online um and basically start a school group and then they start bullying somebody that’s in their group. Um, should the school deal with that or should parents deal with that? My god, that’s a hard question. And the reason it’s hard is because in 1950, of course, the school wouldn’t have dealt with it. The schoolhouse gate was a physical thing. And the school wasn’t able to come to your home at night and read your diary um and drag you down to the principal’s office or the, god forbid, the local police station by the ear if they didn’t like what you wrote. But now they can because all they have to do is look online and have access to your Facebook feed or your Instagram feed and they might see something there that they don’t like. Now, my job is to fight the spread of the school’s authority to discipline student speech. And the reason is this. I I’ll tell you, and again, you know, this is a biased view. There are certain school districts, particularly in the South, by the way. There’s a big deal in the South. Um, I’ll take one. I’ll pick on one city. Huntsville, Alabama. Huntsville, Alabama, a few years ago, I believe two years ago now, hired two, well, I know for sure one, I think two employees, but one full-time employee whose entire job was to sit in the administration building and monitor students social media feeds for issues of potential disruption. This is new, you guys. This is not something that was possible 20 years ago, and now it’s possible. So the question is, are schools your parents, your guardians, your moral authority, the people who tell you how you should act when you’re not in school? And the answer has differed. Some courts have said, look, disruption is disruption. And if you’re at home, you’re not disrupting class. So no. Um, those are called circuit courts, by the way. Those are federal courts right below the Supreme Court. And they have different rules. So, if you live in some states, the answer may be different from you. If you live in Alabama versus

California, um Alabama has a more conservative federal court. You won’t be shocked to know that California is a more liberal uh federal court. So, in those two areas, um there are different rules for how much the school can reach online into your private life and discipline you for what you say. Now, there are a couple of threads that that um come out of this. The first is everyone lives in terror of school shootings, including judges. If what you say online is violent and involves your school, I guarantee you the courts will find that your school had the authority to talk to you about that and possibly discipline you for that. There have been several cases like that where school where students have basically gone online and made something akin to bomb threats or shooting threats um or just said, “I’m going to be violent to this person.” Courts usually find that schools have authority because the possibility of violence at school is so disruptive. And and I’ll be honest, it’s hard to argue with that, even though I’m creeped out by the school’s authority creeping farther and farther outside of those schoolhouse gates. The second way to put it is getting out of violence is that a lot of courts have basically come up with something that is called a nexus test. And I realize that’s a total lawyer word um but that basically means a a relevance test. How much did what you did involve the school? Was it a Facebook feed of, you know, was it a chat group of all students? Um, was it directed at students? Did you talk about something you were going to do at the school day? You know, if you messaged your friends and said, “I’m going to bully Kim tomorrow in second period and somebody saw that online.” Probably the school has a decent argument that that could disrupt school and they’re just trying to prevent that disruption. Um at the same time of course uh it is obvious when things disrupt the school and I think our view the ACLU’s view in my view is that the school can deal with disruption when it happens and that as far as kids bullying each other online um while that is tragic and something that parents absolutely need to deal with and when it’s criminal can be reported to the police. We should not let the ability to communicate over the internet shrink our constitutional protections, which is what that does, right? There is no actual difference in the world of 1980 and the world of 2010 as far as the school’s need to tell you you’re being a jerk on a Saturday. It’s just a difference in ability. And so from my point of view, if something falls short of something so targeted at the school and that involves potential violence, I think the school has no business snooping into your bedroom, reading your diary, and claiming that it’s justified in doing so because that happens to occur on Twitter instead of on paper as it used to. So um that is I think the kind of big picture overview. We’ll turn to questions. I think the last big picture thing I want to say that I that I might have said earlier is that we talked about the philosophy of the dual role, right, of the school both being an educator and being the government. It’s very clear that this is a sliding scale based on age. When

you’re in kindergarten, it’s really the government, right? I mean, I’m sorry. It’s really the educator. Like, you’re a tiny baby. The school has to keep you alive, right? it’s not not as concerned about developing your political beliefs. Um it’s making sure that you stay alive and you know you eat and you nap and you get through the end of the day. As you get older, I think we want to meaningfully start inculcating democratic values. If you’re going to a public school, one of the huge benefits of that is it’s a training ground for being a participatory citizen of our democracy. And part of that is our first amendment. Our first amendment is messy as hell. Um, my god, it protects people who say god-awful things, people who burn the flag, people who protest at people’s funerals. I mean, our first amendment protects speech that everyone on this webinar would be deeply offended to their core to hear. Okay? It’s not a pretty thing. We do it despite those costs. We do it because we’re afraid of the government making the call about what’s the right thought and the wrong thought or the right thing to say or the wrong thing to say. And I believe that in my heart of hearts. And I believe that by the way um because I am a progressive and I know that history has shown us that when we give the government more power to regulate speech, it will often choose to regulate the words of the most vulnerable among us. And it often won’t look like the world we think it would be if we were the ones in charge. Um and unfortunately there are real racial dimensions to how this plays out um across the country. I mentioned Huntsville, Alabama. They had a full-time guy just looking at social media. Well, reports from that school district was that pictures on social media looked a lot different to that gentleman who himself happened to be white. Which is to say that when he saw a picture of a black student with a gun, he thought thug. When he saw a picture of a white student with the gun, he thought second amendment warrior. Um, and by the way, I I don’t know what the guy was actually thinking. I don’t know this gentleman personally, but the results were overwhelmingly racial in terms of school discipline. And Huntsville has a long uh record of disproportionate discipline against black students uh compared to white students. Um, and I think given the government more power, more ability to troll through our speech, to decide what we’re thinking, whether or not it’s dangerous, whether or not it’s disruptive, is going to operate exactly against those same vulnerable in Huntsville, for example, black students that are already disproportionately discriminated against, not only by private people, but by government as well. Um, and so I, for me, that’s where I end up. And I think as you get older, you can take it when you get to college. My god, that that the government school you go to, right? The University of Connecticut, the University of California, wherever you attend, you’re an adult. You are probably 18. Um, and sure, you’re learning, but you’re paying for it. You’re getting a service. And I think in that situation, we want the government

to act a lot more like government, which is to say, we want a lot more freedom of speech. And you don’t get, you know, if you stand up and say, um, you know, here’s my opinion, and it’s really offensive, but deal with it. there’s a much higher bar for what disruption is in college as there should be because you should be challenged. You should hear things you disagree with and the way to figure things out um is to hear things you disagree with and grapple with them. Uh which is what you guys are doing. So kudos. Um that’s my spiel. And now I will turn to the question cue, but please send them my way if you haven’t already. Okay. Um, I am just scrolling through, so if you guys can be patient with me while I make sure I get good questions in. Somebody asked about trigger warnings. Um, I I’m I’m happy to answer that, although I would note that trigger warnings are really something that is um in in vogue at the college environment more than high school. Trigger warnings for those who don’t know are effectively when a professor gives you a warning that content may trigger a negative experience, may trigger PTSD. Um, basically this story involves a rape and you should be aware of that. I believe that um there are many phrases that people use with the un kind of the built-in understanding that it means one thing or another and and yet I think they can be abused and I think trigger warnings are one of those phrases. I think when you use it, you imply a negativity towards them as though they’re a bad thing. Um at least that’s my personal experience. But actually trigger warnings can be super pro- speech, right? I I’m a professor. Uh I teach at a law school. I teach at an undergrad institution. Um, if I’m teaching a really challenging topic, for example, revenge porn, for those of you who don’t know what it is, that’s a really good thing. But as a free speech attorney, I have to grapple with really gross and bizarre topics, including what are the rules and should it be okay to be a crime if you post a naked image of someone else without their permission? This is a tough topic to talk about, right? It involves gender. It involves sex. It involves morality. It involves pornography. Um, it involves the intimacy of human relationships from anything from a 10-year marriage to a Snapchat, right? Um, these are not easy topics. I will just tell you as a professor, I get a way better conversation if I warn people in advance that we’re going to grapple with some real stuff and that they should be non-judgmental and people should feel free to express their opinions in an atmosphere where they won’t be attacked for them. Um, that’s what I consider a trigger warning, frankly. And I think that’s pro speech and I’m a hardcore free speech advocate. I wouldn’t do that unless I thought it produced a better learning environment. Um, now I also think sometimes people mean trigger warnings as something like uh it involves this topic and you can just not read the book and exempt yourself from it. I actually don’t know that that happens in practice and I think it’s kind of a straw man argument. So as a general matter I think it depends on what you mean by trigger warnings. If

it’s a school mandating that a teacher give them, that might impact the teacher’s ability, you know, to decide what’s best for her class. But at the high school level, the government has a lot of control over the curriculum. So, if they did that, it would be okay. Um, at the college level, I think we leave it to professors to decide how best to educate their students. And again, that goes back to my philosophy that you’re a grown-ass adult when you’re in college, and you should be challenged. Um, and your professor should have a lot of leeway to decide how best to educate you. Okay. Um let’s see. If speech codes are implemented right now and they’re unconstitutional, what action is being taken against those to help uphold free speech? Um, well, again, speech codes is is one of those phrases that could mean a lot of things. Um, uh, I don’t know of, you know, as a general matter, there are codes of conduct in high schools for sure, um, that may include speech, right? like bullying or harassing teammates or things like that. Again, when that um interaction is made of speech, right? When it’s made of words, uh you’re going to get the exact same analysis we just talked through. Um so, you know, if you are calling someone a racial slur, again, in a school environment, in a in a grade school environment, that’s not going to be protected. Everything changes when we get into college environment. And these are really hotly debated issues. And I should mention, by the way, that the ACLU, in addition to being a free speech organization, is a racial justice organization. So, we approach these things pretty thoughtfully. Um, we’re also a women’s rights organization, and there are a lot of tensions between feminists and free speechers on campus or certainly they’re advertised as such. I think they’re a little overblown. Um, but the ACLU absolutely does sue against speech codes if they go too far at the university level and include words. Um, I myself have worked on some of those cases. For example, I represented a University of Nevada Reno student who was told she couldn’t put a political sign in her window because their speech code included no um partisan signs. No political signs. And we got that knocked out. It was easy. The the First Amendment makes those unconstitutional as long as we’re talking about a government school. Private school, all bets are off. They can have whatever code of conduct they want as long as it doesn’t otherwise violate the law. And at the high school level, it’s hard to know what a speech code is because again, as I’ve tried to explain to you in this last hour, schools get a lot of difference to regulate your speech. And your first amendment rights are kicking around there in the background. But anything that is likely to fall under a speech code um could arguably be called uh disruptive. And I’m, by the way, not condoning that. I’m just saying it’s in reality uh high schools are going to get a lot of difference in punishing you for speech that is hateful towards other students and the like. Um now it would all depend on the you know details of what you mean by speech code in any particular instance. If a high school speech code said um you can’t use the word zebra uh or you can’t use the word Democrat or you can’t discuss Bernie Sanders um then that would be

unconstitutional because all of those are political opinions that are not in and of themselves disruptive and yeah the ACLU would sue. There’s also when we’re talking about the college level by the way a wonderful organization called the fire uh which is uh freedom of individual rights and education. Um, and the fire basically exists to sue against speech codes. Um, so if you’re interested in speech codes, I encourage you to check out the fire.org a little more. Okay. What are my thoughts on social media and how speech should be regulated? Um, well, you know, my thoughts. I’ve already talked that, you know, I’m on the pretty conservative side in terms of expanding the government’s power further uh to allow them into your social media. I think it’s counterproductive. I think it can have I it can replicate a lot of the prejudices we have when we see pictures online, right, between again that black uh student with a gun and a white student with the gun for many people might look very different as far as how disruptive they are and they shouldn’t be in real life, but again those prejudices can increase when we’re talking about making assumptions about someone’s conduct from their social media content. So in general, I don’t favor it. Um again, unless and until it creates an immediate risk of violence for students at school. Um, that being said, Mariam, who asked the question, in addition to being a lawyer, I I like to think of myself as a practical person. And the reality is this. If you’re in grade school, if you are under grade 12, it’s very possible that people in your administration are looking at your social media feeds. And by the way, not just because you’re a student, but because you’re an active consumer and learning how to exercise your rights in a digital era where our privacy is really imperiled because of the amount of stuff that people thoughtlessly share. It is your job. It is your job as a student in this digital day and age to be digitally literate. And that means when you open a social media account, be aware of who can see it. Take control of your settings. Do not accept friend requests from people you don’t know. Um, by the way, I know I sound like a lite and an old person, but there’s not really a value to having 15,000 friends if they’re people you don’t know. Instead, what you might be building is a bigger surveillance machine made up of some dude in law enforcement who’s reading your social media accounts. Um, so take control of your digital life and make sure that doesn’t happen. And when you speak online, do be aware and you should have, by the way, the space to speak online and be yourself. But be aware that, you know, often that audience can get bigger very quickly because things you write online can be cut, they can be pasted, they can go viral, someone can take a screenshot, your webcam could be on. And so you have to be an active consumer of your own privacy, not just with respect to school officials, so they’re not disciplining you for dumb stuff you say on Facebook over the weekend, um, but because this is the reality of the rest of your life and what you put online is fodder, uh, for everyone else to make decisions about you. So use it wisely. Okay. Um, we covered hate speech. Does this Tinker case pertain to speech or was it just an action? I I think we covered that, Cindy, but to be clear, the armband there was symbolic

speech, so it is considered speech under the First Amendment. Okay. Um, Kirby asked, “At school, teachers, good question. We got a question about teachers rights. I like this. Teachers aren’t allowed to share their political views with students. Does that violate their first amendment rights?” I alluded to this a little bit, but just like students, those rights are going to change dramatically depending on the level uh of the student. And the I think a little sad, but the reality is as a general matter that for grade school, K through 12, um, school officials have a lot of control over the curricular speech of a teacher, right? What the teacher says when they are standing at the front of the class. Um, so when a teacher is teaching you, a school could probably discipline them if they went on a political rant um, instead of teaching the lesson. Now, that being said, when they’re not teaching, when they’re not in their curricular roles, um I don’t believe a school could ever fire a teacher because she told a student in the cafeteria who she voted for or because that teacher went online and said something about his political views, right? So, that that um you know, teachers actually have very few free speech rights at school because they are at their jobs um and their job during the curricular time is to educate you. But outside of the schoolroom environment, um, disciplining a teacher for simply making a political opinion known, that I think that would violate the First Amendment, and I think ACLU would take a case like that. Um, Nicole asked, “What qualifies as substantial disruption?” Well, we talked about that, Nicole, so that’s where I can put a fighter point on that. You know, every case is going to be different, and it’s going to be different in the environment in which it happens and in, you know, in class. anything you say out loud arguably is going to be disruptive um in the cafeteria or afterchool time um you know it’s you’re going to have a stronger argument that you have more free speech and similarly as I mentioned with the kind of Frasier case anytime students are gathered in captive like a school audience and they’re required to be somewhere the school controls that environment and therefore is going to get more deference for controlling what’s said in that so for example a school assembly right let’s say a school assembly you get up and you’re supposed to sing my country t of thee and instead you you know what, I would like to share my views with you um about Donald Trump. Uh the school could cut your mic and that’s not a violation of your free speech rights and that’s because other students are captive. So that’s kind of a curricular environment. So I can’t really give you a particular set of circumstances because they’re literally limitless. There are hundreds if not thousands of student speech cases arguing over whether something a student did was disruptive. They’re hotly contested. They’re not always consistent. But I think the best way to think about it is that the school is going to get more or less difference for disciplining you depending on the environment where that happens. They’re going to get the most difference in the schoolroom and they’re going to get less and less as you’re outside of the school room. So, you know, school sponsored event, cafeteria, after school, at home on social media. That’s kind of the category. Um, and we would argue that

the further down you go, in order to reach disruption, it has to be acutely disruptive. And that’s why I noted for social media speech, I I’m comfortable setting some a very high bar that involves literal violence on on school property. Um, Julia says, “Would I say that the biggest reason schools would be justified in restricting speech is potential terrorist activity?” I absolutely would not, Julia. Um, and more broadly, I would say that terrorism is also often invoked uh as that powerful word that tries to convince us that we should think about something. Um, and our free speech rights, the intrusions in our free speech rights often start because somebody uses the T word. Um, and that’s true outside of the school context, right? We have things like massive surveillance of our email as as revealed by Ed Snowden. um that occurred because of the excuse of terrorism, but of course it ended up revealing all of our private emails to the government uh which we think is a massive a massive unprecedented violation of civil liberties. So I think relying on the worst case scenario only leads us to one place which is ratcheting down rights. And when we think about the role that we want schools to play in our society and the role that we want to play to between government and educator um we can’t make those public policy decisions from a place of fear thinking about the absolute worst case scenario. We have to have rules that actually apply to the everyday interactions that we want to see in schools. Um so I would just say a very hard no to that question. Okay, so this is the last question. Um, Kate, if you have anything you want me to cover in the next one minute that I neglected to. I think we got through colleges. Um, but but please type now and I’ll look. Okay, let’s see. Um, I will finish with with which what I think is a pretty pretty biased question from Hayes. Uh, recently Ben Shapiro traveled to Cal State to give a lecture on conservativism. the leftist group at that school didn’t allow him to speak, pulled a fire alarm, and assaulted some of the attendees. Is this justified as the university claims? I’m giggling because I don’t believe that it’s fair to say the university has justified uh pulling a fire alarm and assaulting attendees, at least that I’ve seen. I’d be really shocked uh if that happened. So, um anyway, I don’t mean to make fun of you, Hayes. It’s just that this is a version of the liberals hate speech on campus that I hear all the time and I kind of refuse to buy that narrative. It’s certainly true um that there are many liberals on campus who uh who object to certain speakers and may not appreciate the value of free speech, but there’s no way it’s only true for liberals. Um and indeed, conservatives protest speakers who come to their colleges all the time. Um, you know, uh, conservatives are very well known for protesting safe spaces or trigger warnings, which may, by the way, not at all be a violation of free speech and in fact may be pro- speech in certain instances. As we talked about, a voluntary trigger warning um, may help

encourage a good conversation. So, what I would say is um, the answer to your question is no, it’s not justified. Obviously, if people were assaulted and they pulled a fire alarm, none of that is protected speech. But I think embedded in your question is kind of an assumption that leftists, I believe you use the word, um, are somehow kind of the ones who are responsible for killing free speech on campus. And I I actually just don’t think that’s true. In fact, I think that as opposed to the time when I went to college, there has been a sea change, which is there are a lot more students who feel empowered to speak up. And those students are not just white and male and part of a tradition where um you know only a certain range of ideas was discussed as acceptable. And by the way, when a student has a protest and asks for a safe space or asks for a trigger warning, guess what? That student is also her free speech rights. I mean, so we really have to be clear about um what is censorship? And I’m a First Amendment attorney, so I’ll leave you with this thought. Here’s what I think of. Censorship is when the government tries to muzzle you or pick a winner or loser in a fight. And when private students disagree um about morals, about the way the world should work, about first amendment protections, they equally on the right and the left are citizens exercising their first amendment right. And that’s what I think a college environment should be. Nobody should be pulling a fire alarm. Nobody should be trying to stop someone from speaking. But should students who disagreed uh with Ben Shapiro’s.com and counterprotested and chanted and you know hung signs and said we disagree with Ben Shapiro’s outlook of the world. Absolutely. And that is the messy complex first amendment world that I hope you all inherit when you get to college. Uh good luck finishing high school. Thanks for hanging out for an hour. Um and as I said, if you don’t already have one, get a free copy of the Constitution from the ACLU. Have a great night. All right. Um, I hope you’ll all join me in the comments and thanking Miss Roland uh for talking with us. Um, I’m now going to go ahead and switch over to the survey. Um, I hope uh students and teachers will copy and paste um the link here and just give us a minute to tell us your thoughts and what we can do better and check out some other programs we offer. Um, thanks so much, Miss Roland. You can go ahead and light up.