Schrier, Steven M.

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 17Number 1 Fall, 1986 Article 41986Recent Developments: Bethel School District No.403 v. Fraser: First Amendment Does Not PreventSchool District from Disciplining Student forGiving Offensively Lewd and Indecent SpeechSteven M. SchrierFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationSchrier, Steven M. (1986) "Recent Developments: Bethel School District No. 403 v. Fraser: First Amendment Does Not PreventSchool District from Disciplining Student for Giving Offensively Lewd and Indecent Speech," University of Baltimore Law Forum: Vol.17 : No. 1 , Article 4.Available at: http://scholarworks.law.ubalt.edu/lf/vol17/iss1/4ficient to protect the bank because the policy did not address sexual harassment. The policy therefore failed to notify em-ployees of the employer's interest in avoid-ing that form of discrimination. Second, the mere existence of a grievance procedure within the bank was insufficient to protect the bank against liability because the pro-cedure required an employee to complain to her supervisor first. In this case, the employee would have had to complain to the alleged perpetrator, which she under-standably failed to do. The Court left the door open regarding the rulings on em-ployer's liability in the future. It even sug-gested that if the employer's "procedures were better calculated to encourage victims of harassment to come forward" the em-ployer may be able to avoid liability. ld. at 2409. Justice Marshall delivered the concur-ring opinion, joined by Justices Brennan, Blackmun, and Stevens. They agreed that workplace sexual harassment is illegal and violates Title VII. As regards employer liability, however, the justices concluded that "sexual harassment by a supervisor of an employee under his supervision, lead-ing to a discriminatory work environment, should be imputed to the employer for Title VII purposes, regardless of whether the employee gave 'notice' of the offense." ld. at 2411. Based on the Court's holding there may be problems in the future concerning proof of whether conduct was "unwelcome" or "voluntary." Also, the issue of employer liability in sexual harassment cases has been left open, although the Court has indicated that future cases should apply agency principles. -Libby C. Reamer Bethel School District No. 403 v. Fraser: FIRST AMENDMENT DOES NOT PREVENT SCHOOL DISTRICT FROM DISCIPLINING STUDENT FOR GIVING OFFENSIVELY LEWD AND INDECENT SPEECH In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court of the United States acknowledged that students do not "shed their constitutional rights to free-dom of speech or expression at the school-house gate." ld. at 506. Recently, however, the Court held that a school district acted entirely within its permissible authority in imposing sanctions upon a high school student in response to the student's offen-sively lewd and indecent speech given at a school assembly. The Court held that such speech was not protected by the first amend-ment. Bethel School District No. 403 v. Fraser, 106 S.Ct. 3159 (1986). Matthew Fraser was a high school stu-dent in Bethel, Washington. At a school assembly attended by about 600 students, many of whom were 14 years of age, Fraser delivered a speech in support of a candi-date for student government office. The speech referred to the candidate in terms of explicit sexual metaphors, employing such phrases as "he's firm in his pants ... his character is firm," "a man who takes his point and pounds it in," and "a man who will go to the very end - even the climax, for each and every one of you." ld. at 3167. Students at the assembly hooted and yelled during the speech, mimicking the sexual ac-tivities alluded to in the speech, while others appeared to be shocked and embar-rassed. Prior to Fraser's delivery of the speech, two of his teachers with whom he had discussed the contents of his speech MARYLAND POlYGRAPH ASSOCIA nON MEMBER PAST PRESIDENT JOSEPH M. KEOUGH Polygraph - Security Services 513 Rita Drive Odenton, MD 21113 in advance, advised him that it was inap-propriate and should not be given. The day after he delivered the speech, Fraser was asked to report to the assistant principal's office. At the meeting, Fraser was given notice that he was being charged with violating the school's disruptive con-duct rule, which prohibited conduct that substantially interfered with the educa-tional process, including the use of ob-scene, profane language or gestures. After being given an opportunity to explain his conduct, in which he admitted that he de-libenitely used sexual innuendos in the speech, Fraser was suspended for three days. In addition, he was informed that his name would be removed from a list of can-didates on a ballot for graduation speakers. Fraser initiated a grievance of the disci-plinary action through the school dis-trict's grievance procedures. The hearing officer affirmed the decision but Fraser was allowed to return to school after serv-ing only two days of his suspension. Fraser, joined by his father as guardian ad litem, then filed a civil rights action in federal district court, seeking injunctive relief and monetary damages under 42 U.S.C. § 1983. The district court, holding that the sanctions violated the student's rights under the first and fourteenth amend-ments, awarded Fraser monetary damages and enjoined the school district from pre-venting him from speaking at graduation. Fraser was elected graduation speaker and spoke at the commencement ceremonies. The United States Court of Appeals for the Ninth Circuit affirmed the district court judgment, rejecting the argument that the nomination speech had a disrup-tive effect on the educational process. The court also rejected the argument that the school district had an interest in protecting MEMBER (301) 551-8343 Fa/~ 1986rrhe Law Forum-7 students, most of whom were minors, from lewd and indecent language in a school-sponsored setting. The Supreme Court of the United States reversed. Chief Justice Burger, speaking for the majority, distinguished Tinker as markedly different from the facts in this case. Specifically, that the penalties im-posed on Fraser were unrelated to any political viewpoint. Moreover, the Chief Justice emphasized that "[i]n upholding the student's right to engage in a nondis-ruptive, passive expression of a political viewpoint in Tinker, this Court was careful to note that the case 'did not concern speech or action that intrudes upon the work of the schools or the rights of other students." 106 S.Ct. at 3163. It was against this back-ground that the Court considered the level of First Amendment protection accorded to Fraser's nomination speech. The Court first discussed the role and purpose of the American public school system. The Court stated that the objec-tives of public education were to inculcate "fundamental values necessary to the main-tenance of a democratic political system." Id. at 3164, (quoting Ambach v. Norwick, 441 U.S. 68, 76-77 (1979». Conceding that these "fundamental values" included tolerance of unpopular views, both politi-cal and religious, the Court determined that "[t]he undoubted freedom to advo-cate unpopular and controversial views in schools and classrooms must be balanced against society's countervailing interest in teaching students the boundaries of socially appropriate behavior." Id. at 3164. More-over, the Court declared that while the first amendment guarantees adults wide protection in matters of public verbal ex-pression, it does not follow that because adults are not prohibited from using offen-sive forms of expression when making a political point, that children in a public school must be given the same latitude. Secondly, the Court expressed unequiv-ocally that one of the functions of public school education is "to prohibit the use of vulgar and offensive terms in public dis-course." Id. at 3165. The Court reasoned that the "fundamental values necessary to the maintenance of a democratic political system" discourage the use of highly offen-sive terms. Furthermore, the Court indi-cated that the Constitution is void of any language which prohibits the states from deciding that certain expressions are inap-propriate and subject to sanctions. Realiz-ing that the inculcation of these funda-mental values are truly the responsibility of the schools, the Court left the deter-mination of what speech was appropriate in the classroom or assembly to the school board. 8-The Law ForumJFal~ 1986 The Court then turned its attention to frrstamendmentjurisprudencecon~g limitations on free speech where the speech is sexually explicit and reaches an unlim-ited audience, especially an audience in-cluding children. The Court acknowledged that these cases recognize a concerned in-terest on the part of parents and school authorities "to protect children - especially those in a captive audience-from exposure to sexually explicit, indecent, or lewd speech." Id.; See Ginsberg v. New York, 390 U.S. 629 (1968); Board of Education v. Pico, 457 U.S. 853 (1982). In addition, the Court cited cases which recognize an interest "in protecting minors from ex-posure to vulgar and offensive spoken lan-guage." 106 S.Ct. at 3165; See FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Thus, the Court concluded that the first amendment did not prevent the school district from suspending Fraser in re-sponse to his offensively lewd' and inde-cent speech, and further concluded that to permit such a speech would "undermine the school's basic educational mission." 106 S.Ct. at 3166. Remarking that "[a] high school assembly or classroom is no place for a sexually explicit monologue di-rected towards an unsuspecting audience of teenage students," the Chief Justice con-cluded that "it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the 'fundamental values' of public school education." Id. The Court's holding in Fraser danger-ously limits a high school student's first amendment right to free speech. Giving school officials the unbridled discretion to apply the nebulous standard of"indecency" in controlling the speech of high school students, certainly increases the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in the public schools. Language considered "indecent" in one segment of society may be common, household usage in another. Freedom to be different in one's individual manner of expression is a core constitutional value. The first amendment reflects the consid-ered judgment of the Founding Fathers that government shall not be permitted to use their power to control individual self-expression. Finally, the Court characterizes Matthew Fraser as a "confused boy" whose "lewd, indecent, and offensive" speech could be "seriously damaging to its less mature au-dience, many of whom were only 14 years old and on the threshold of awareness of human sexuality." 106 S.Ct. at 3165. The Supreme Court obviously fails to consider the everyday environment that these stu-dents live in. Fraser was speaking not to children, but to young adults. Most high school students are beyond the point of being sheltered from the many sights and sounds they encounter everyday. Although school officials and parents may be of-fended by certain utterances and actions, high school students, as young adults, should be able to determine for themselves whether such conduct is inappropriate and whether it should be disciplined. -Steven M. Schrier Falwell v. Flynt: NEW YORK TIMES "ACTUAL MALICE" STANDARD DISTINGUISHED IN ACTION FOR EMOTIONAL DISTRESS In Falwell v. Flynt, Hustler Magazine, Inc., and Flynt Distributing Co., Inc., __ F.2d __ (4th Cir. 1986), the United States Court of Appeals for the Fourth Circuit held that the level of protection available to a publisher in a suit by a public figure for emotional distress arising from a false publication is met by the recklessness standard of the tort itse1£ The court further held that a New York Times v. Sullivan, 376 U.S. 254 (1964), .analysis is not re-quired. In so holding, the court affirmed the decision by the United States District Court for the Western District of Virginia. In Falwell, the lawsuit arose out of an "ad parody" that appeared in Hustler maga-zine, which attempted to satirize an adver-tising campaign for Campari Liqueur. In the actual Campari advertisements, celeb-Fities talk about their "first time," meaning their fust encounter with Campari Liqueur, but there is a double entendre with a sex-ual connotation. In the Falwell parody, he is the celebrity in the advertisement which contains his photograph and an interview which is attributed to him. In this inter-view, Falwell allegedly details an incestu-ous rendezvous with his mother in an out-house in Lynchburg, Virginia. Falwell's mother is portrayed as a drunken and im-moral woman and he is portrayed as a hypocrite and a habitual drunkard. Fal-well filed suit in the United States District Court for the Western District of Virginia alleging three theories ofliability: libel, in-vasion of privacy under Va. Code § 8.01-40 (1984), and intentional infliction of emo-tional distress. The district court dismissed Falwell's invasion of privacy claim and the jury returned a verdict for the defendants on the libel claim, finding that no reason-able man would believe that the parody was describing actual facts about Falwell. On the emotional distress claim, the jury 

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Recent Developments: Bethel School District No. 403 v. Fraser: First Amendment Does Not Prevent School District from Disciplining Student for Giving Offensively Lewd and Indecent Speech

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