Determining Free Speech for Students: When Does Interpretation Play a Part?

Newswise — WASHINGTON, DC — In the fall of 2010, some female public middle school students began wearing the Keep a Breast Foundation’s “I ♥ Boobies” wristbands and distributing them to classmates to raise awareness, show support, and open a dialogue about breast cancer. School administrators banned the wristbands, deeming them sexually provocative and inappropriate. When the students were suspended and barred from attending an upcoming school dance for refusing to comply, they sought a court injunction against the ban and their exclusion from the school dance. The district court ruled in their favor, and the Third Circuit Court later upheld the decision.

In a new article published in the National Communication Association’s journal, First Amendment Studies, Brian Amsden, Assistant Professor of Communication and Media Studies at Clayton State University, writes that courts “make decisions based on pretences of objectivity, insularity and empty formalism.” However, Amsden argues that they should also pay attention to elements such as public culture, literary form, and ideology when making decisions. Amsden uses the B.H. and K.M. v. Easton Area School District (2013) case to support his claim of the potential benefits of collaborations between legal practitioners and experts in rhetoric.

The majority opinion in the case was based on a new three-part test created by the judges to help determine the free speech rights of public school students moving forward: 1) speech that is “plainly lewd… may be categorically restricted regardless of whether it comments on political or social issues;” 2) speech that “a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues;” and 3) “speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.”

Amsden argues this litmus test is flawed because “it does not encourage [school administrators] to produce good rhetorical analysis.” He predicts that the test will subject students’ First Amendment rights to arbitrary restrictions, and that it “almost guarantees that the high court will need to revisit lewd student speech sooner or later.”

To counter this, Amsden recommends that rhetoricians collaborate with school administrators to create a set of concepts, terms, and methods that elucidate the interpretative process, and provide a “measure of rhetorical sensitivity” not found in legal texts.

Amsden’s article is featured in the latest issue of NCA’s Communication Currents (Volume 11, Issue 5), which includes several other translational articles related to free speech and the First Amendment in honor of Free Speech Week, October 17-23.

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