A Guide to Student Free Speech

Today’s public school students possess First Amendment rights when they enter the “schoolhouse gate,” thanks to landmark U.S. Supreme Court rulings from the 1940s and 1960s. Before that, students did not possess any free speech rights; school officials had near absolute authority over their students and could restrict student speech in many cases.

However, even today, public school students’ rights are not absolute, and questions remain, including how far public school officials can extend their authority over students. It’s also worth noting that private school students do not have any First Amendment rights unless the school or the state establishes those rights; the First Amendment applies only to government actions.

Do students have free speech rights?

In this article, we take a deep dive into student free speech and schools. We explore what students can and can’t say during and outside of school and give examples of prominent court cases that have transformed students’ free speech rights over the years.

Students can’t be forced to salute the flag

In the 1940s, the Supreme Court examined state laws that required public school students to stand, salute the flag and recite the Pledge of Allegiance.

In one 1940 case from Pennsylvania, Jehovah’s Witness students challenged this requirement on religious (and speech) grounds. They contended that saluting the flag violated their sincerely held beliefs that “the Bible as the Word of God is the supreme authority.”

The court initially upheld the Pennsylvania flag salute law. Justice Felix Frankfurter said that saluting the flag was a unifying aspect of patriotism that served the common good. After the decision, some Jehovah’s Witnesses faced violence in response to their refusal to salute the flag.

Three years later, the Supreme Court reexamined this issue and struck down a flag salute law in West Virginia, finding it violated the First Amendment (West Virginia State Board of Education v. Barnette, 1943).

The decision established that public school students had some level of First Amendment rights. It also established the “no compelled speech doctrine,” which states that government officials often cannot force people to speak or believe certain things.

But the court’s 1943 decision did not establish a clear legal test to determine when student speech was protected and when it was not; that would come later.

Students can express political beliefs in school

More than 25 years later, in a case involving symbolic speech, the court established a test for when the First Amendment protects student expression.

In 1965, Mary Beth Tinker, her brother John Tinker and a few other students planned to wear black peace armbands to their public school in Des Moines, Iowa, to protest U.S. involvement in the Vietnam War.

School officials had learned of the protest and passed a school districtwide rule that prohibited the wearing of black armbands. Officials said they believed that the topic was too controversial, as some students had siblings and other relatives fighting in Vietnam.

The students still wore the armbands anyway and were suspended from school. They challenged their suspensions in federal court, where the judge sided with school officials, but the Supreme Court ultimately dealt the students a major victory (Tinker v. Des Moines Independent Community School District, 1969). The court said that the students had engaged in a form of symbolic speech “akin to pure speech” and were not disruptive or invasive to the rights of others in the school community.

The primary test from the Tinker decision has become known as the “substantial disruption test.” Under this test, public school officials cannot censor student speech unless they can reasonably anticipate that it will cause a substantial disruption or material interference with school activities. The ruling also resulted in the “invasion of the rights of others” test. This allows school officials to restrict student speech if it infringes upon the rights of others in the school community. This standard is still being developed in the lower courts, as the Supreme Court has yet to fully explain the specifics of it.

Lewd and vulgar speech is limited in schools

The Supreme Court’s decision in Tinker remains the leading student speech standard. However, the court has created exceptions to that ruling. One of the most significant was in a 1986 case that involved student Matthew Fraser, who gave a schoolwide assembly speech nominating a fellow student for student body vice president. His speech included sexual innuendos.

School officials suspended Fraser, deeming his speech disruptive. Fraser challenged the suspension in federal court and initially prevailed, with two federal courts reasoning that school officials had failed to show that Fraser’s speech rose to the level of a “substantial disruption” under the Tinker analysis.

However, the Supreme Court later overturned those earlier rulings (Bethel School District v. Fraser, 1986). Chief Justice Warren Burger noted a “marked distinction” between the political speech of the Tinkers and the sexualized speech of Fraser.

The rule that Justice Burger created was that public school officials can prohibit student speech that is vulgar, lewd or plainly offensive.

The rights of student-journalists are limited

The Supreme Court created another exception to the Tinker rule in a case that involved a high school newspaper in Missouri: Hazelwood School District v. Kuhlmeier (1988).

The controversy ensued when a high school principal ordered two articles removed from an upcoming issue of the school newspaper, claiming they were inappropriate.

One article dealt with teen pregnancy and the other reported on the impact of divorce upon teens. The principal said he feared the articles would lead to further ostracization of the few pregnant students in the school as well as create privacy concerns, as the article about divorce included students commenting about their parents.

The students countered that the article was not demeaning to pregnant students and that they offered parents the opportunity to respond in the divorce article.

Three student editors challenged the principal’s actions. They continued their fight all the way to the Supreme Court, which set a new standard that gave more authority to school officials regarding school-sponsored student speech. Justice Byron White said: “We hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical [educational] concerns.”

The court determined that the school principal had legitimate and reasonable concerns about the two articles in question.

In a powerful dissent, Justice William Brennan accused the court majority of sanctioning “brutal censorship.”

Since then, 18 states have passed laws, sometimes called “anti-Hazelwood” or “New Voices” laws, that provide greater protection for student journalists and other students than the Supreme Court did in its decision, most often by applying the more speech-protective Tinker standard instead.

Students can’t advocate for illegal drug use

For many years, student-speech law in K-12 schools largely revolved around Tinker, Fraser and Hazelwood, which broadly set rules related to protection of nondisruptive speech, limitations on vulgar and lewd speech, and student journalists’ rights. Then came a high school student from Alaska who displayed an unusual banner.

James Frederick, an 18-year-old senior, skipped school to stand near his public high school in Juneau, Alaska, to see the Winter Olympics torch relay. It was not a school-sponsored event, but it was school-sanctioned, with cheerleaders and other students participating.

Frederick and others displayed a large banner at the event with the message “Bong Hits 4 Jesus.” Principal Deborah Morse rushed across the street and ordered all who held the banner to drop it immediately. Everyone except Frederick complied.

Morse gave Frederick a 10-day suspension.

Frederick sued, alleging that the school was punishing him for off-campus speech that was not substantially disruptive under Tinker, not vulgar or lewd under Fraser, and not school-sponsored under Hazelwood. An appeals court agreed with him.

But the Supreme Court reversed that decision and created another rule: Public school officials can punish student speech that advocates the illegal use of drugs and that occurs in school or at school events (Morse v. Frederick, 2007).

The court rejected one school official’s argument that public school officials could prohibit Frederick’s speech because it was “plainly offensive” under Fraser. Chief Justice John Roberts reasoned that this “stretches Fraser too far” because much student religious and political speech might be considered offensive to other students. This changed the Fraser standard from “vulgar, lewd, and plainly offensive” to just “vulgar and lewd.”

Student speech on social media is (mostly) protected

In 2021, the Supreme Court addressed a case involving off-campus student social media speech.

Pennsylvania high school student Brandi Levy was upset that she did not make the varsity cheerleading squad. On a Saturday afternoon, outside a convenience store, she posted an angry message on Snapchat that contained profanity and was directed at the school. The message made its way to school officials, who then suspended Levy from the junior varsity cheerleading squad for a year.

Levy and her parents sued, saying the suspension violated the First Amendment. The case went to the Supreme Court, which found that Levy’s First Amendment rights were violated when the school extended its authority to her off-campus, social media expression (Mahanoy Area School District v. B.L., 2021).

However, the court held that school officials can regulate off-campus student social media speech when it is “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”

The court didn’t, however, clarify when social media speech crosses the line into unprotected severe bullying or harassment.

In his opinion, Justice Stephen Breyer identified “three features” that make most student social media speech off limits for school officials:

1. “Geographically speaking” most student speech falls into the realm of parental, not school authority.
2. Social media speech often takes place at all hours of the day, far removed from school hours.
3. Public school officials must protect even “unpopular student speech.” “Public schools are the nurseries of democracy,” Breyer wrote.

While questions remain over the extent of free speech protection for public school students when they engage in social media speech, what is clear is that students do not lose their free speech rights simply because they are students.

The bottom line on student free speech

While students’ free speech rights in school aren’t absolute, the Supreme Court consistently has reiterated that students are people under the Constitution and possess First Amendment rights. Still, questions remain, and the courts will continue to weigh in on when and how far school officials can limit student speech.

This article was updated on June 11, 2025. It may be updated with future developments.

David L. Hudson Jr. is a First Amendment fellow at Freedom Forum and an associate professor of law at Belmont University. He can be reached at [email protected].