The Basics
What is freedom of speech?
Freedom of speech is the right to express your ideas and beliefs the way you choose. Freedom of speech protects what you say, what you write, and how you express yourself. It protects your ability to organize and participate in nonviolent protests and meet with other people.
Do I have the right to freedom of speech while I am at school?
YES. You do not lose the right just because you are at school or are a student.
What laws protect my freedom of speech at school? Does the type of school I go to matter?
Several laws protect your freedom of speech at school, but applicable law varies depending on whether you attend public or private school.
Your right to free speech in public school or charter schools is protected by the First Amendment to the U.S. Constitution and by the Liberty of Speech Clause of the California Constitution. In addition, if you go to a public school or charter school, California Education Code Section 48907 provides even more protection than the U.S. or California Constitutions.
If you go to private secondary school, your right to free speech is protected by a California statute. A law known as California Education Code Section 48950 prevents private secondary schools in California from disciplining students from engaging in conduct that is protected by the First Amendment or the Liberty of Speech Clause unless the school is controlled by a religious organization and the speech conflicts with the school’s religious tenets.
This means that while you still have free speech rights at a private high school in California, your speech is more protected in a public or charter school in California because of Education Code 48907.
what laws protect my freedom of speech at school? does the type of school i go to matter?
Several laws protect your freedom of speech at school, but applicable law varies depending on whether you attend public or private school.
Your right to free speech in public school or charter schools is protected by the First Amendment to the U.S. Constitution and by the Liberty of Speech Clause of the California Constitution. In addition, if you go to a public school or charter school, California Education Code Section 48907 provides even more protection than the U.S. or California Constitutions.
If you go to private secondary school, your right to free speech is protected by a California statute. A law known as California Education Code Section 48950 prevents private secondary schools in California from disciplining students from engaging in conduct that is protected by the First Amendment or the Liberty of Speech Clause unless the school is controlled by a religious organization and the speech conflicts with the school’s religious tenets.
This means that while you still have free speech rights at a private high school in California, your speech is more protected in a public or charter school in California because of Education Code 48907.
Can my school limit my freedom of speech?
SOMETIMES, YES. The First Amendment and Liberty of Speech Clause provide strong constitutional protection for student speech, but they still allow schools to limit your free speech in some cases. But in addition to the constitutional protection for student speech, a California law (California Education Code Section 48907) makes it harder for public and charter schools to limit your free speech.
The First Amendment to the U.S. Constitution and the California Constitution’s Liberty of Speech Clause allow a school to limit free speech that (1) causes a “substantial disruption” at school (meaning it interrupts school activities in a serious way), or (2) interferes with the rights of others at the school. Whether your speech counts as substantially disruptive depends on the context. But a school can’t limit free speech just because it’s controversial or disrespectful or because it upsets people.
Whether your speech interferes with the rights of others usually depends on if the speech seriously threatens or harasses other people, or if it spreads false information about someone that might hurt their reputation. This is called defamation and can take several forms such as written or spoken. If you make a false spoken statement damaging someone’s reputation, it is called slander. However, if you make that same false statement but written and fixed in a tangible medium such as in a magazine, blog or even social media, it is called libel.
California Education Code Section 48907, however, adds extra free speech protections that make it even harder for a school to limit your speech. Under Education Code 48907, a school can limit your speech if it is obscene or if it spreads false information that might affect someone’s reputation. But beyond that, a school can’t limit your speech—even if it’s disruptive—unless it incites (causes) other students to substantially disrupt the school, violate school rules, or participate in illegal activities.
Finally, schools must make sure students don’t go to school in a “hostile environment.” So, schools may get involved if your speech repeatedly harasses others. For instance, schools are required to intervene if your speech makes it harder for students of other races to succeed in the classroom.
What counts as a “substantial disruption” under the First Amendment? How is this different from California Education Code Section 48907?
Under the First Amendment, which applies to public and charter schools, your speech may be restricted when it creates a substantial disruption, or a reasonable threat of substantial disruption — meaning when you express yourself in a way that significantly interrupts a school activity, or when it leads to, or is likely to lead to, violations of school rules or illegal activities.
But California law provides that if you attend a public or charter school, your speech is more protected. Under Education Code 48907, your speech can’t be limited just because it is likely to lead to a disruption; your speech can be restricted only if it actually “incites” or encourages others to disrupt the school, violate school rules, or participate in illegal activities.
What counts as interfering with the rights of others under the First Amendment? How is this different from California Education Code Section 48907?
Under the First Amendment, schools can also generally limit your speech if it interferes with the rights of others. Your speech interferes with the rights of others when it seriously hurts another person’s education or physical or mental health, when it threatens or intimidates another person, or when it is false and could harm another person’s reputation. In addition, the First Amendment does not prohibit a school from restricting student speech when it’s vulgar or obscene. Further, in Schenck v. United States, 249 U.S. 47 (1919), Justice Holmes stated in his opinion that speech could be restricted if it created a “clear and present danger.” This test is used by the government to determine how it can restrict speech without affecting the First Amendment rights.
But under California law, if you attend a public or charter school, your speech is more protected. Education Code 48907 allows your school to restrict obscene speech, but not vulgar speech. For example, you may use curse words to express yourself, but you can’t share sexually explicit material or spread embarrassing false information about someone. Beyond this, as mentioned earlier, your school can restrict your speech if it is false and could harm another person’s reputation, or if it incites others to disrupt the school, violate school rules, or participate in illegal activities.
If schools can limit free speech to prevent “hostile environments,” what counts as a hostile environment?
Because schools must ensure that students are able to learn in a non-hostile environment, they are required to take steps to stop repeated harassment. Whether your speech creates a hostile environment depends on context, but your speech would need to repeatedly interfere with other students’ abilities to learn in school. For example, using multiple racial slurs, even when not directed at someone, may create a hostile environment for other students.
Common Free Speech Issues
Can my school stop me from expressing my opinion because they don’t like it?
NO. Schools officials can’t censor you just because they don’t agree with your point of view. This is referred to as viewpoint discrimination.
Can my school restrict the type of language I use to express myself?
YES. For example, your school can limit your speech if it contains language with graphic sexual references. The First Amendment does not prevent schools from prohibiting you from using profanity. But Education Code 48907 provides greater protection for your speech. Under that California law, public and charter schools can only stop you from using profanity when you are writing in your school newspaper and your adviser believes you are violating professional standards of English or journalism or when it incites other students to create a clear and present danger of disrupting the school, violating school rules, or participating in illegal activities.
Can my school restrict speech about drugs or other illegal activities?
SOMETIMES. Under the First Amendment and Education Code 48907, a school can punish you if you encourage others to sell, buy, or use illegal drugs, but it cannot punish your other speech, such as if you advocate for the legalization of drugs.
Can my school restrict speech that it considers “false”?
SOMETIMES, YES. Your school can ban speech that it considers “libelous” or “slanderous.” These terms mean speech that (1) you know is false or should know is false, and (2) is harmful or potentially harmful to someone else’s reputation. For example, speech that spreads an embarrassing rumor about a student that you know is not true could be restricted.
Can my school restrict speech that criticizes school officials?
NO, unless your criticism includes inappropriate sexual references or false statements that harm a person’s reputation.
Can my school restrict speech that it says is “harassment”?
YES. If your speech is causing substantial interference with the education or physical or mental health of another student, or is threatening or intimidating another student, then it is not protected.
Can my school punish me for speech that it considers to be a “threat”?
YES, if it is a “true threat.” To be considered a “true threat” under Education Code Section 48900.7, you must intend that your statement be perceived as a threat. Your words must be so clear and believable that the person has a reasonable fear for their safety.
Expressing Your Free Speech Rights
Do I have the right to organize a protest at school?
YES, so long as it is a peaceful and orderly protest. For example, you can organize a peaceful protest at lunch or before or after school, but a school could punish you for organizing a protest that calls for students to walk out of class, because that organizing activity could be speech that incites other students to disrupt the school, violate school rules, or participate in illegal activities. If you are organizing a protest, you should check your school’s written rules on student speech.
Can my school censor my article for the school newspaper?
USUALLY, NO. In California, California Education Code Section 48907 specifically protects student journalists in public and charter schools from censorship: Unless your article contains profanity, inappropriate sexual references, or false statements that hurt someone’s reputation, or unless it encourages substantially disrupting the school, violating school rules, or participating in illegal activities, your article can’t be censored. Under Education Code 48907, the school’s journalism advisor also has the authority to ensure the material students put in the paper satisfy professional standards of English and journalism.
Education Code 48907 provides more protection than the First Amendment rule, under which schools can censor student newspapers if they have any valid educational reason for doing so. But so-called underground or independent student newspapers cannot be censored under the First Amendment unless the school satisfies the First Amendment disruption standards discussed above.
Do I have the right to pray at school?
YES, so long as your prayer does not disrupt other students or force them to participate.
What can I do if my school tries to censor or prevent my speech?
If your school is trying to censor your speech, you should ask to see their rules. Under California Education Code Section 48907, your school is required to write down its rules on student speech and publications. You should also ask your school to explain why it wants to ban your expression.
If your school thinks your speech likely encourages illegal activities or a substantial disruption of school operations, or it infringes on the rights of other students, it may have the right to censor your speech. You may have to go to court to get a final decision.
Can my school punish me for refusing to participate in the Pledge of Allegiance or for kneeling during the National Anthem?
NO, so long as you refuse to participate in a non-disruptive way. In other words, you do not talk, yell, or interfere with those who want to participate. Silent forms of protest, such as sitting down while the Pledge is being delivered, or kneeling while the National Anthem is being sung at sporting events is protected expression, and teachers and school administrators may not punish you for doing so. It is irrelevant if your protest takes place during a mandatory school activity, such as the recitation of the Pledge at the beginning of class, or during a voluntary activity, such as at an extracurricular sporting event. It also does not matter how others react to your expression; as long as you were not being disruptive, you cannot be punished or forced to participate.
Can my school prevent me from supporting Black Lives Matter (for example, by wearing a BLM t-shirt or button) or punish me for doing so?
GENERALLY, NO. The U.S. and California Constitutions and California Education Code Section 48907 all protect your ability to wear Black Lives Matter gear in school, and you cannot be punished for doing so.
In a famous 1969 case called Tinker v. De Moines Independent Community School District, the U.S. Supreme Court said that students couldn’t be punished for wearing black armbands to protest the Vietnam War. The Supreme Court said that punishing the students violated the First Amendment, because wearing a black armband did not substantially disrupt the school or interfere with the rights of others, so public schools in the U.S. could not restrict it. A Black Lives Matter t-shirt or button is protected, like the black armbands in Tinker, because it is a form of speech that expresses an opinion without substantially disrupting the school or affecting others’ rights.
In addition, Section 48907 of the California Education Code specifically protects students’ rights to wear “buttons, badges, and other insignia” as part of their free speech and expression. And because Education Code 48907 is more protective of student speech than the First Amendment, Black Lives Matter gear could only be restricted if it incites substantial disruption of the school, violation of school rules, or breaking the law. Wearing a Black Lives Matter button or t-shirt does not encourage disruption or rule-breaking, so a school cannot prevent you from supporting BLM or punish you for doing so.
There is one important limit to this basic rule, however: California law allows school districts to adopt dress code policies requiring students to wear school uniforms, although your school must provide a way for your parents or guardians to opt out of the uniform policy. As a result, your school may stop you from wearing a BLM t-shirt or other t-shirt with a different message if its uniform policy doesn’t allow t-shirts or allows a school logo on clothing but no other writing or message.
A school with a uniform policy may also try to stop you from wearing buttons or badges supporting BLM, but we do not believe the restriction on these types of buttons or badges is allowed because of the protections in Section 48907. If your school tries to use its uniform policy to stop you from wearing a BLM button, we recommend that you contact us to discuss what steps you can take to allow you to continue doing so without fear of being disciplined.