Post on Managing Student Expression: A Constitutional Theory of Student Free Speech Rights @YaleLawSch

Robert Post, Yale Law School, has published Managing Student Expression: A Constitutional Theory of Student Free Speech Rights. Here is the abstract.

Courts and commentators write as if the speech of K-12 students were endowed with full First Amendment protection, save in narrow circumstances when it is reasonably foreseeable that the speech will cause substantially disruption or materially interfere with the rights of others, when it is vulgar or lewd, when it involves school sponsored communication, or when it advocates for illegal drug use. But even the most superficial observation of student classroom expression reveals the fictional nature of this perspective. Student speech in classrooms is comprehensively and routinely subject to forms of regulation that violate the most elementary rules of what the Court has called “ordinary First Amendment standards.” Student classroom speech is controlled by official discretion; it is compelled; it is constrained by content and viewpoint discrimination; it is subject to prior restraints. The goal of this article is to offer a constitutional account of student speech that can explain the contours of its actual regulation. Ordinary First Amendment standards are designed to protect participation in what the Court has called “the market of public opinion.” This market must remain perpetually free from state control so that, in the Court’s words, government authority can “be controlled by public opinion, not public opinion by authority.” The goal is to ensure that the state remain continuously responsive to “that public opinion which is the final source of government in a democratic state.” Often government responds to popular will by creating institutions charged with implementing specific tasks. Government creates courts to apply justice or agencies to administer the social security system. It would be counterproductive in such circumstances to insist on the open-endedness that ordinary First Amendment standards are designed to protect. Instead mission-driven state institutions must effectively control the speech of those within the scope of their authority so that they can achieve their assigned objectives. The article also evaluates how courts conceive the nature, scope, and force of school managerial authority. That authority receives highly deferential review insofar as students seek to speak qua students. But insofar as students seek to speak qua citizens, the paper assesses the variables and doctrine used by courts to weigh the prerogatives of school managerial authority against the free speech rights of students. The article also evaluates how courts conceive the nature, scope, and force of school managerial authority. That authority receives highly deferential review insofar as students seek to speak qua students. But insofar as students seek to speak qua citizens, the paper assesses the variables and doctrine used by courts to weigh the prerogatives of school managerial authority against the free speech rights of students. Of particular concern in the past several years has been the efforts of schools to control off-campus student speech that might potentially undermine school functioning. The paper argues that the general framework of speech regulation within managerial government organizations offers a coherent, consistent, and convincing way to explain the complexities of our actual constitutional jurisprudence of student speech. It seeks to substitute that cogent perspective for the fictional appeals to fictional rights that too often dominate contemporary scholarly and judicial discussion of student speech.

Download the article from SSRN at the link.