The American Civil Liberties Union

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It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate
--TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969)

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tinker v des moines. my favourite case ever. although the ruling was "first amendment" not fourth. however, the principle does, in effect, apply. schools are legally treated like any other governmental property regarding free speech, privacy, weapons, etc. schools have a slightly lower standard for reasonable searches, and prohibiting certain speech, because they have something called a legitimate public or governmental interest in conducting school and teaching classes. therefor, (and i believe you'll even find this in tinker) speech that disrupts the learning process can and should be censored. for instance, yelling "fire!" in the cafeteria and causing the school to be evacuated is not protected under tinker. nor is holding protest that disrupts classes or blocks hallways.

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MR. JUSTICE WHITE, concurring.

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...I deem it appropriate to note, first, that the Court continues to recognize a distinction between communicating by words and communicating by acts or conduct which sufficiently impinges on some valid state interest;
-- TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969)

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other speech that may be censored includes anything with the school's letterhead or name on it. for instance, a school can legally censor even an independent school newspaper run and funded by students if they feel it does not properly represent the image of the school they'd like to portray. (Hazelwood School District v. Kuhlmeier, 1988)anyways, on to the fourth amendment. luckily, i wrote my conlaw final on this, and took a whole class on the 4th amendment.Vernonia School District v. Acton 515 U.S. 646 (1995) ruled that random drug testing does not violate student's fourth amendment rights. justice scalia wrote:

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As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is "reasonableness." At least in a case such as this, where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, [n.1] whether a particular search meets the reasonableness standard " `is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.' " Skinner, supra, at 619 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)). Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant, Skinner, supra, at 619. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, "when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)

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shall i run through more?New Jersey v. T. L. O. (1985) sets up the standards. let's take a look.

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1. The Fourth Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, and is not limited to searches carried out by law enforcement officers. Nor are school officials exempt from the Amendment's dictates by virtue of the special nature of their authority over schoolchildren. In carrying out searches and other functions pursuant to disciplinary policies mandated by state statutes, school officials act as representatives of the State, not merely as surrogates for the parents of students, and they cannot claim the parents immunity from the Fourth Amendment's strictures. Pp. 333-337. [p326]

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school's held to fourth amendment standards, and act as government officials, not in loco parentis.

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2. Schoolchildren have legitimate expectations of privacy. They may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items by bringing them onto school grounds. But striking the balance between schoolchildren's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place requires some easing of the restrictions to which searches by public authorities are ordinarily subject. Thus, school officials need not obtain a warrant before searching a student who is under their authority. Moreover, school officials need not be held subject to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a determination of whether the search was justified at its inception and whether, as conducted, it was reasonably related in scope to the circumstances that justified the interference in the first place. Under ordinary circumstances, the search of a student by a school official will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. And such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search, and not excessively intrusive in light of the student's age and sex and the nature of the infraction. Pp. 337-343.

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the key phrase here being "striking the balance between schoolchildren's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place." it also mentions how that, although school officials ARE held to the fourth amendment, the standards are much more lax. this agreement is consented to by showing up. (under brown v board of education, all students have the right to free and public education, but there other options available)this not a total waiving of rights. it's not even as tight as an airport would be, where we agree to waive most of our fourth amendment rights for the purposes of safety.now, i recognize that this is not quite what you were looking for. but it does demonstrate that the school has the right to seize personal property if it encroaches on the schools interest in doing its job.if rosie had been walking along and minding her own business, and they search her explicitly for the purposes of removing her of her bible, they are violating the above cases. if she was reading it in class, and they confiscated it, they were not. similarly, if rosie were praying quietly by herself before eating her lunch, she cannot be legally punished. but if she's shouting off the school's rooftop with a megaphone in the middle of second period, she can be punished.editted to add rosie's account: if this is the whole story, the school is clearly violating both standards i posted above. rosie, can you further elaborate the story some with some more information? what were the other students doing at the time of both occasions?This message has been edited by Arachnophilia, 05-12-2005 03:38 AM

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wasn't that a bill maher joke?

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not true. in certain instances, some speech is not protected. although hate speech is, hate speech that incites violence is not. death threats, and bomb threats are not protected speech. speech that causes mass-hysteria (like yelling "fire!" in a crowded theatre, resulting in tramplings, injuries, or death) is not protected.i forget the exact standard, but i think the illegal activity advocated has to cause serious physical harm or endanger the lives and well beings of innocent people and/or government officials.nambla is a bit of a tought case. are they advocating consentual unions (statutory rape) or actual rape and molestation?This message has been edited by Arachnophilia, 05-12-2005 08:51 PM

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[editted for clarity]actions = symbolic speech. see the tinker case i cited on page one, as well as cohen v. california, and any number of cases involving non-vocal speech or artistic expressionThis message has been edited by Arachnophilia, 05-12-2005 10:55 PM

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well, no. it's actual speech. my point was that crossing over into the realm of action is meaningless. tinker, which crash referenced and i cited, was a case involving actions -- wearing armbands.actions can be protected speech.but speech that incites violence cannot. if i remember the standard correctly.

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i'm confused as to how that's not exactly what i said.here's what i wrote above:

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not true. in certain instances, some speech is not protected. although hate speech is, hate speech that incites violence is not. death threats, and bomb threats are not protected speech. speech that causes mass-hysteria (like yelling "fire!" in a crowded theatre, resulting in tramplings, injuries, or death) is not protected.

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i forget the exact standard, but i think the illegal activity advocated has to cause serious physical harm or endanger the lives and well beings of innocent people and/or government officials.

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i also specifically used the word "incite" in the bit that you quoted.berberry was just arguing that it was a standard based on speech becoming action, when it's not. it's a standard based on harm. actions can be protected speech, such as demonstrations, performance art, armband-wearing, etc. speech that directly causes (specific) HARM cannot be.[edit]i'm also confused about what crash was right about. he asked for legal precedent regarding searches and seizures in public schools, and i gave him a number of cases, one of which specifically spells out the rules of when searches and seizures are allowed, and under what standard. his only other post i did not disagree with.This message has been edited by Arachnophilia, 05-13-2005 07:31 AM

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i stated that bit as a question because i am unfamiliar with nambla, and don't feel like looking them up. i don't know what nambla does in detail. if i did, i might be able to make a call. it's not so much a "close call" as me being unacquainted with their type of speech. if they are encouraging their members to forcibly rape young boys, then it's probably not protected, as this can be an immediate threat to the society.but i'm gonna forego addressing your individual points and point out the actual standards:"fighting words" (applies to advocacy of specific violence, as i said above)

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Chaplinsky v. New Hampshire

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It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality

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hate speech (group libel)

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Beauharnais v. Illinois

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Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary . . . to consider the issues behind the phrase 'clear and present danger.'

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R. A. V. v. City of St. Paul

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[hate speech, defamation, obscenity, and fighting words] can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content

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now, this is what i'm referring to. when speech encourages immediate and specific violence, it is not protected. i think you're referring to this:

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The Incitement Test (Brandenburg v. Ohio)

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The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

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these are not TOTALLY mutually exclusive. both include the ideas of imminent violence: "clear and present danger." so, basically, i forgot to indicate "immediate" physical harm anywhere. but it's what i was trying to get at -- it's just been a while since i've looked at conlaw.[edit]i include "specific" for a reason, though. threats of violence have to be direct to not be protected. for instance, the court found in NAACP v Clairborne Hardware that indirect threats violence to a large group, designed to persuade future actions, are protected.This message has been edited by Arachnophilia, 05-13-2005 09:19 AM

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also, i think dan and monk are on opposing sides.personally, i'm just trying to provide a background. for the most part, i agree with the courts.err, also editted because i figured out where the confusion came from. i meant the speech itself has to cause the harm, or actually endanger people, not that the actions encouraged have to be serious. i think i left out the word "being" actually. it should have read the "illegal being advocated has to cause... etc" but even then it's still very unclear.i was trying to express the "imminent danger" bit on no sleep and a poor memory. so uh, sorry, my fault.This message has been edited by Arachnophilia, 05-13-2005 09:39 AM

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yeah, a good section of it my fault. yeah, i'm pretty sure we agree here, i was just fumbling with terminology. i should have looked it up first.

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editted to add cases. well, in this issue (now that i've looked up the standard) it's not context.instructions on how to kidnap and rape a child is considered a future indeterminant indirect threat. preventing the speech here of the illegal action is something called prior restraint. which is unconstitutional.

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Near v. Minnesota (1931)

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Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."

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Near v. Minnesota (1931)

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In his work on the Constitution (5th ed.), Justice Story, expounding the First Amendment, which declares "Congress shall make no law abridging the freedom of speech or of the press," said ( 1880): "...It is plain, then, that the language of this amendment imports no more than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation, and so always that he does not thereby disturb the public peace or attempt to subvert the government."

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New York Times v. United States (1971) ("pentagon papers")

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But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result

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and speaking of how to make nuclear bombs:

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United States v. Progressive, Inc. (1979)

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What is involved here is information dealing with the most destructive weapon in the history of mankind, information of sufficient destructive potential to nullify the right to free speech and to endanger the right to life itself.

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Stripped to its essence then, the question before the Court is a basic confrontation between the First Amendment right to freedom of the press and national security.

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(they did not overturn the gag order, because they determined that the article did pose a clear and present danger to national security)whereas with child pornography, the crime has already happened. it's not stopped because it creates a clear and present danger to children, but because the children have already been affected. the speech (photography) itself is condemned because it is generally ruled as obscene (by just about everyone) and can be seen to have no valid purpose in the exchange of ideas.

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Miller v California sets out the "modern" test for obscenity. After years in which no Supreme Court opinion could command majority support, five members of the Court in Miller set out a several-part test for judging obscenity statutes: (1) the proscribed material must depict or describe sexual conduct in a patently offensive way, (2) the conduct must be specifically described in the law, and (3) the work must, taken as a whole, lack serious value and must appeal to a prurient interest in sex.

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MILLER v. CALIFORNIA (1973)

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...in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that under the Roth definition: "as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

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MILLER v. CALIFORNIA (1973)

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We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

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now, one of the two examples one would bring up as a counterpoint would be art, such as jock sturges and mapplethorp. here, if the photographs of naked children can be shown to valid artistic intent, they are protected. i do believe the standard is based on intent.

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NEW YORK v. FERBER (1982)

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The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the "sensibilities of unwilling recipients" from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy

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Aschcroft v Free Speech Coalition(2002)

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As we have noted, the CPPA is much more than a supplement to the existing federal prohibition on obscenity. The CPPA, however, extends to images that appear to depict a minor engaging in sexually explicit activity without regard to the Miller requirements. The materials need not appeal to the prurient interest. Any depiction of sexually explicit activity, no matter how it is presented, is proscribed. The CPPA applies to a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse. It is not necessary, moreover, that the image be patently offensive. Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards.

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The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea that of teenagers engaging in sexual activitythat is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. This is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations.

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Aschcroft v Free Speech Coalition(2002)

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The artistic merit of a work does not depend on the presence of a single explicit scene. Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive.

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the other one would be normal pornography. normal pornography, i think, relies on context. cable can show certain things [at certain times]. magazines can show other things. but free tv and radio cannot show or describe certain things. this is because opt-in services can also be opt-out service. one does not have to pay for cinemax, if they don't want their child watching "hotel erotica" at 2 am. the internet is considered an opt-in service, since you have to pay for access. the government cannot restrict the rights of adults to do what they want with their money, so long as it everything is consentual. so here, the standard is based on payment, and consent. children, by definition, are under the legal age of consent. so a child may not legally consent to watching porn, or being in one.

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Aschcroft v ACLU (2004)

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While the statute [COPA] labels all speech that falls within these definitions as criminal speech, it also provides an affirmative defense to those who employ specified means to prevent minors from gaining access to the prohibited materials on their Web site. A person may escape conviction under the statute by demonstrating that he
"has restricted access by minors to material that is harmful to minors-
"(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

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"(B) by accepting a digital certificate that verifies age, or

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"(C) by any other reasonable measures that are feasible under available technology." 231(c)(1)....

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they turned the case back to the appelate court, but this standard above is, i think, generally accepted for everything.

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United States v. Playboy (2000)

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This case presents a challenge to 505 of the Telecommunications Act of 1996. Section 505 requires cable television operators who provide channels "primarily dedicated to sexually-oriented programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as the time between 10 p.m. and 6 a.m.

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United States v. Playboy (2000)

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Playboy Entertainment Group owns and prepares programs for adult television networks, including Playboy Television and Spice. Playboy transmits its programming to cable television operators, who retransmit it to their subscribers, either through monthly subscriptions to premium channels or on a so-called "pay-per-view" basis. Cable operators transmit Playboy's signal, like other premium channel signals, in scrambled form. The operators then provide paying subscribers with an "addressable converter," a box placed on the home television set. The converter permits the viewer to see and hear the descrambled signal.

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United States v. Playboy (2000)

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Appellee Playboy Entertainment Group, Inc., challenged the statute as unnecessarily restrictive content-based legislation violative of the First Amendment.

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United States v. Playboy (2000)

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The Government has failed to show that 505 is the least restrictive means for addressing a real problem

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uh, i can't find the exact standard at the moment, but those two cases hint at it. playboy was sued only for poor scrambling techniques, as its other methods of safeguarding content inappropriate for minors were sound, as that case states.

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United States v. Playboy (2000)

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Section 505 was enacted to address the signal bleed phenomenon. As noted, the statute and its implementing regulations require cable operators either to scramble a sexually explicit channel in full or to limit the channel's programming to the hours between 10 p.m. and 6 a.m.

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edit: ah here we go. the following case is over george carlin's "flithy words" monologue being broadcast over the air, and overheard by a child and his father.

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FCC v. Pacifica Foundation (1978)

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1. The FCC's authority to proscribe this particular broadcast is not invalidated by the possibility that its construction of the statute may deter certain hypothetically protected broadcasts containing patently offensive references to sexual and excretory activities. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367. Pp. 742-743.

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2. The First Amendment does not prohibit all governmental regulation that depends on the content of speech. Schenck v. United States, 249 U.S. 47, 52. The content of respondent's broadcast, which was "vulgar," "offensive," and "shocking," is not entitled to absolute constitutional protection in all contexts; it is therefore necessary to evaluate the FCC's action in light of the context of that broadcast. Pp. 744-748.

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FCC v. Pacifica Foundation (1978)

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The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U.S. 728. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he [749] hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.[note 27]

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Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U.S. 629, that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. [750] Id., at 640 and 639.[note 28] The case with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

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"cohen" refering to cohen v. california in which a man wore a shirt saying "FUCK THE WAR!" his right to do so, as protest, was constitutionally protected. very famous little dictum from there too:

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Cohen v. California (1971)

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For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

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also, one of the reno v. aclu (1997) cases basically rules that the fcc has no jurisdiction over the internet, if i recall. so as for child porn on the net, your point may indeed be wrong. but the three reno cases are a lengthy and confusing read.This message has been edited by Arachnophilia, 05-13-2005 11:57 PM

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i'm reasonably sure you are. see the standards i posted.(maybe i should find the actual caselaw for the ones i just posted to monk)

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not totally. see my post to monk. i added a bit about prior restraint, and how now matters of grave importance to national security CAN be gag-ordered.

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i could probably argue that one either way convincingly, actually.you raise some good questions. but unfortunately, for the reason i responded to you (prior restrait, and no direct and specific threat or clear and present danger) they are protected. no one here LIKES nambla or what they stand for. but they, like everyone else, have the right to voice their opinions in their proper contexts, however distasteful they may be.it's almost a slippery-slope argument, really. if we shut down nambla and the kkk by removing things like prior restraint and clear and present danger standards, what's to stop other political movements from not being shut down too? ideally, the best solution, would be to revise the standards some. which the court does from time to time.

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this is quite true. civil disobedience, the declaration of independence, etc.many of the landmark cases in freedom of speech were in essence rigged. people broke the laws especially to get arrested, and make a case against the law in appellate courts, up to the supreme court. tinker (the first case mentioned here) was certainly rigged. they knew the schools restrictions and purposefully broke them. their ten day suspension (and i think even the war they were protesting) was well over with by the time they made it through the supreme court. it's the principle of the matter.if i recall, larry flint rigged a NUMBER of cases. (another famous rigged case was the scopes monkey trial...) i watched "national treasure" the other day. cute disney action flick, sean bean playing a bad guy as usual. anyways. there's a really good quote nick cage makes, regarding breaking laws and the founding fathers.

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A toast -- to high treason.

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That's what these men were committing when they signed The Declaration. Had we lost the war they would have been hanged, beheaded, drawn and quartered -- oh, and my personal favourite, had their entrails cut out and burned! So, here's to the men who did what was considered wrong, in order to do what they knew was right.

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this country was founded by law breakers, breaking unjust laws. and here is their argument, the declaration of independence.

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When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

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rosa parks WAS a criminal. so were the japanese citizens interned in ww2 who refused to be subject to draft. so were the tinkers and their friend.but laws had to be broken, because laws are not always just. eh. if he doesn't see it, refer him to it later.

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