The Handy Law Answer Book. David L Hudson

this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.

      Do young students have the same rights to free speech as adults? Recent Supreme Court decisions have held that they do not (iStock).

      A problem in this area is that it is unclear when an employee is speaking pursuant to their official job duties. Sometimes a public employee may speak both as an employee and as a concerned citizen. Many courts look to the “core functions” of an employee’s job and try to determine whether the speech is required by the job.

      What level of First Amendment rights do students possess?

      Public school students possess First Amendment rights but they are limited by the school environment. Generally, public school officials can restrict student speech that they reasonably forecast would cause a substantial disruption or material interference with school activities. This is known as the Tinker standard from the U.S. Supreme Court decision in Tinker v. Des Moines Independent Community School District (1969; see LegalSpeak, p. 56).

      In later decisions, the U.S. Supreme Court explained in Bethel School District v. Fraser (1986) that school officials can restrict student speech that is vulgar or lewd. The Court later ruled in Hazelwood School District v. Kuhlmeier (1988) that school officials have greater ability to restrict student speech that is school-sponsored, such as expression from most school newspapers, school plays and school mascots. More recently, the Court ruled in Morse v. Frederick (2007) that public school officials can restrict student speech that they reasonably believe advocates illegal drug use.

       LegalSpeak: Garcetti v. Ceballos (2006)

      Justice Anthony Kennedy (majority): “The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 (“Ceballos does not dispute that he prepared the memorandum ‘pursuant to his duties as a prosecutor’”). That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

      Justice John Paul Stevens (dissenting): “public employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong…. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”

      Justice David Souter (dissenting): “I agree with the majority that a government employer has substantial interests in effectuating its chosen policy and objectives, and in demanding competence, honesty, and judgment from employees who speak for it in doing their work. But I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.”

      Justice Stephen Breyer (dissenting): “Where professional and special constitutional obligations are both present, the need to protect the employee’s speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available. Hence, I would find that the Constitution mandates special protection of employee speech in such circumstances. Thus I would apply the Pickering (see p. 53) balancing test here.”

       What happened in Garcetti v. Ceballos?

      In this 2006 case, an assistant district attorney in Los Angeles, Richard Ceballos, learned from a defense attorney about possible perjured statements from a law enforcement officer in a search warrant affidavit. Ceballos conducted an independent investigation and agreed with the defense attorney that the officer’s testimony was troubling. Ceballos, as calendar deputy which gave him some supervisory authority, wrote a memorandum to his superiors, recommending that the criminal charges in the case be dismissed. His superiors did not agree with Ceballos, who later testified at a suppression hearing in the criminal case. Ceballos was demoted and transferred to a less desirable office after this controversy. Ceballos sued Gil Garcetti, the district attorney, and others, contending that they retaliated against him for his protected speech.

      The U.S. Supreme Court ruled 5 to 4 (see LegalSpeak, p. 54) against Ceballos, finding that his speech in his memorandum was part of his official job duties and not protected citizen speech.

      What expression was involved in the Tinker case?

      In Tinker v. Des Moines Independent Community School District (1969; see Legal-Speak, p. 56), several students wore black peace armbands to school to protest U.S. involvement in the Vietnam War. School officials had learned of the protest and quickly passed a no-armband rule. School officials believed the armbands were too controversial and could cause problems. The U.S. Supreme Court ruled 7 to 2 in favor of the students and against school officials. The Court reasoned that the school officials did not show that the armbands would be disruptive of school activities in any significant way.

SECOND AMENDMENT

      What makes the Second Amendment controversial?

      There are two very different interpretations of the Second Amendment, which provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Second Amendment consists of two clauses—the prefatory clause speaking of a “well-regulated militia” and an operative clause speaking of the “the right of the people to keep and bear arms.”

      One interpretation of the Second Amendment focuses on the militia clause, emphasizing that the amendment was only designed to protect a collective right to bear arms through a militia. This collective-rights interpretation does not believe that the amendment was designed to give individuals a constitutional right to bear arms. The other interpretation of the Second Amendment—the individual-rights model—believes that the amendment gives individuals the right to bear arms.

       LegalSpeak: Tinker v. Des Moines Independent Community School District (1969)

      Justice Abe Fortas (majority): “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate…. The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

      “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular