Good afternoon, and welcome to the Cato Institute. I am the Vice President here at cato and publisher. I would hardly like to thank you for coming here today off our viewers online and being broadcast by cspan, you may not know, unexpectedly the washington subway system, the metro was closed today. The people that have joined this year amid a great effort to your something about this book, lessons and censorship. The topic of our book form today. Another thing that can be said command we chose today for this particular book and the reason is, the 265th birthday of a man named James Madison. As it happens, James Madison wrote the First Amendment because he wrote the 1st ten that were introduced into congress and was beyond that more than just the author of them what a person who wrote them committee was also a strong defender and believed hardly in the. I would say also that in part of that, the First Amendment center valuable institute here in washington has designated his Birthday National freedom of information day, celebrating here today along the publication of this book. I cant help but refer to what i thought was interesting and useful comment or medicine on this very topic the First Amendment freedoms and freedom of speech. Madison road, a popular government without popular information with a means of acquiring it is but a prologue to a farce or tragedy. Perhaps both. Knowledge will forever govern ignorance they are in themselves with the pep. Knowledge gives. Knowledge will govern ignorance. Personal information act hall of fame. Hank aaron. That said, i hope you have a person today was down the line will be a candidate in the freedom of information act hall of fame. The author is a law professor and during the current Academic Year is a visiting scholar. This book was named 2015s best book by concurring opinions First Amendment news. Specializing in constitutional law also in family law she was a commentator in january on a panela panel we had in the participant in cato unbound conversation. If youre following this today please use the hashtag cato events. The Steering Committee on unmet legal needs of children served in many ways at the highest levels of family court and long, distinguished advocate of the First Amendment we are happy to welcome to the Cato Institute. [applause] thank you to the generous introduction. I will begin by reading the opening passage. Use all Constitutional Rights once you enter a schoola school building. Youre not allowed to do this, she asserted. She confiscated flyers from an indignant student who was protesting her friends five day suspension. The student whose plight prompted the pamphlet had been punished for voicing her opposition the bullying and way to school deemed inappropriate. The First Amendment protects speech rights of Public School students in grades k dash 12. You schools all over the country regularly censor constitutionally protected speech by children and judges often let them get away with it. Punishing it afterwards. Schools silence and punish students who express their opinions on every sign of important issues we adopt the committee. Guns, abortion, and more. They suspended. The suspended a sixyearold who call the class made up of who had. They stopped one Elementary School girl from praying before eating our own lunch. And another from distributing all made flyer that began high, my name is in be in which she shared her personal experience that finding christ was like finding a lost dog. In the upper Grades School suspended two boys touring political tshirts. Im sorry. Have to do it appear. We should have practiced. Im so sorry. This is awful. Okay. One was praising the marines and the other was criticizing president george w. Bush is a substance abusing draft dodging chicken hawk. And schools are increasingly abusing students ability. The constitution protects all this expression. When we talk about students we are talking about adolescent humor. Students are likely to get in trouble which really means its offensive because i disagree. Thank you. The problem is too many principals and School Board Members dont know or understand the limits of the constitution while others simply disregard the law because now i could. As ii worked on this book almost everyone i talked to informally said i have a censorship story. And longtime teachers incredulously told me they had no idea students have First Amendment rights. Then ill turn my stories the capture some of the particular contemporary ones. Very concise. Congress shall make no law abridging the freedom of speech. As interpreted, this means that the government and anyone acting on behalf of the government may not sound speech because of its content review point. School districts and everyone who works for them my research and my comments to their limited to Public Schools because the First Amendment does not apply to independent schools to whetherwhether secular or religious. They are not the government. The Supreme Court 1st took up the issue was students speech rights in 1943 comeau one of the earliest cases in which it actually upheld the speech rights of any individual. Jehovahs witnesses at risk of expulsion and being sent to a juvenile reformatory because they refused to say the pledge of allegiance on the ground that it offended their religion, but it was not litigated are interpreted as a religion case. The consequences today of speaking up and being punished can also be dire. Many students enter the pipeline as a result of being suspended, expelled more sent to an alternative school for troubled students after they engage in protected speech. The consequences are stark. People could not be forced to say what was not in their minds to my concept we today call the rule against compelled speech. The court emphasized constitutional limits constitutional limits on powers whether exercised by those tyrants for the federal government and it underscored that the First Amendment was designed to protect nonconformist of all stripes. Particularly focusing on schools because the case involved two Elementary School girls. Because schools are educating the young for citizenship they must scrupulously protect individual rights if we are not to strangle a free mind at its source and to teach you to discount important principles of government is near platitudes. Decades later the court returned and began to carve out a special way of assessing claims in school set illegally censor student expression. The 1st and iconic Supreme Court case and airlifting the cases. The 1st modern case want 1969 and held the schools of violating the First Amendment by suspending students who were black armbands in order to protest the war. Especially the importance of educating young for citizenship and crafted a special test they give schools more leeway to restrain speech to the government has the world at large. It announced schools could not censor student expression unless they had a reason to anticipate the speech could lead to disruption. Exceptions to the test and threein three later cases. These give schools more and more power to censor speech but did not extinguish students speech rights. Two exceptions in the schools discretion to censor student expression as lewd or that advocates the use of illegal substances which you may recognize as the bong hits for jesus case. The most important exception instance from hazelwood versus cole meyer, 1988 decision that created a special category of speech the court labeled School Sponsored. If speech is School Sponsored it is treating it is treated as if the school is speaking in a student is not even though the speech originates with a student in such places as High School Papers for literary magazines but also much further. The speech must appear to bear the schools and perimeter or to be the school zone speech so that a reasonable person would think the school had approved it. This reaches virtually all expression. Let me briefly anticipate some calming concerns about giving students too much freedom in school. Recognizing students Constitutional Rights will not undermine education at all. There are two concerns, its going to undermine education or or o its going to put people at risk of their safety. Regarding the first concern, education, preserving the Schools Educational function is the essence of the material disruption test. So disruption does not have to be tolerated. As for the second, safety, schools may always clamp down on speech thats illegal outside of school, like true threats, a narrow constitutional standard, very hard to satisfy but also harassment. And so forth. And more important, even speech thats protected outside of school by the constitution, that threaten violation or serious disruption. But it does not rise to the level of a true left under constitutional law may always be silenced by a school before it causes problems while officials contain the speaker and investigate whether there is cause for concern. Safety comes first. So thats the tax. Principal or o person has to figure out what kind of speech this is. The students own thats not lewd , not prodrug or School Sponsored, and then within that taxomomm apply the correct test because they have a different formulation. I understand that it is really hard for teachers and principals in spur of the moment when theyre worried to try to understand and use a complex set of standards. But theyre also not adequately prepared to do that. So i provide a chart in the book, color version that can bed orrd an placed in a Principal Office like heimlich poster like what do i do now . We have a speech incident. Okay, this is going to remind me if its the students own speech i have to really slow down and i cant silence it unless theres a threat of material disruption then i have to understand something about what that means, this is not complete legal advice if it is School Sponsored, i have to slow down, i can sensor it but only if i have a legitimate reason, and the fact that someone finds it offensive or it might be controversial is not a legitimate reason under the First Amendment. But the prodrug or inciting inflammatory in some way with or defamatory, i confess and punish it at my discretion. So now, how does this all work . Most of the speech thats at the core of contemporary debate sexting, online speech, bullying, racist expression falls in category of what had i call pure student speech goferred by material disruption, test. Let me begin with creative artist who is commonly get in trouble at school for fictional and graft graphic works. This is a poster that a High School Senior named sarah never been in trouble. She was a good student made during her lunch hour and posted in the quarter. That 15 minutes later before any students had seen it, they were itor sawafeteria, j it, and got really upset and took sarah and poster to Principals Office. It says and ill just capture it, who killed my dog, he was my best friend. It you kill my dog . Did you kill mying to . If you dont tell me who killed my dog, ill kill you. She had taken a course during the summer that taught her about con o art to capture deranged fictional people and in the Principal Office she explained this principal believed her but he said i have to suspend you for five days. Subsequently the school board got involved. And this school board decided that she should be suspended for 81. 5 days. The rest of her senior year, and that she could not return to school unless a psychologist examined her and confirmed that she was mentally fit to be in school. She sued and court ruled that her rights were violated and she was able to return to school and complete her senior year. They said once the principal u interviewed her and understood what was going on, there was simply no reason to anticipate disruption especially because even if other students might have been upset had they seen poster, nobody saw it. So there was no cause for concern at all. In a similar case involving a work of fiction, write in fiction appellate judge rebuked panelist for allowing school to publish the writer. He said after today students will have to hide their artwork. Theyve lost their speech rights. If someone finds their art disturbing they can be punished and freedom of expression to policy of making high schools cozy places. Like day care centers, where no one may be made to feel uncomfortable by knowledge that others have dark thoughts and all the art is of hearts and smiley faces. So if youre wondering about the connection between my book which stops senior year of high school, and some of what has been going on in todays College Campuses about my students who think that their Comfort Level is more important than the expressive rights of their peers, this is part of a connection that i see so i have not written about it. But its part of the katoa unbound discussion that john mentioned earlier. And this brings us to disparaging speech, addressed to groups or individuals. Many schools have speech codes. Those are simply school rules that prohibit students from disparaging based on kargs category like race, Sexual Identity and some go further talking about also physical appearance like short people, like me or even something much harder to measure, values. Students whob presented from expressing respect for a group even though they werent actively aiming their had comments at the group or meaning to be disparaging. I open that schools have center of teabts and many, many schools have wrongly prevented student from forming chapter had of the gay, Straight Alliance ore similar groups. Or from wearing tshirts in which students proclaim their own Sexual Identity. But hes the flipside in this story. Roman Catholic Daniel resisted a lesson intolerance on spirit day. And national day of recognition for lbgt teen who is committed suicide. He told his teacher, i dont accept gays, its against my religion. And the teacher told him to leave the room. There was no risk of disruption ore only o of competing ideas. A federal judge later commented that the teacher had modeled oppression and intolerance of student dependent. Other students agreed. Because when daniel left the room, they asked why doesnt he have free speech . The legal question is whether the constitution permits students im sorry permits schools to regulate hurtful speech addressed to groups or individuals in school or out of school. And the answer is the constitution does not permit that. The u. S. Is very unusual. Just as while she was a law professor discussed university hate speech codes and concluded that even an exceedingly narrow speech code ended in discriminatory harass hadment cannot have scrutiny in the United States and does alito true on the Third Circuit pointed theres no reason to be protected from words. Free speech principle conflict with efforts to reduce the harm that disparaging speech can cause. So this is the crowning paradox under our constitution, a liberal secular democracy that strives to have tolerance in our citizens and more importantly perhaps a culture of Mutual Respect rather than simply tolerating each other, must tolerate are the expression of intolerance. That mean it is that the state cant use its cohearsive powers to punish speech that offends that goal. But the speech clause doesnt leave educators without any recourse. Schoolses teach empathy. They can encourage peers to step up to support each other. When someone is targeted with a hurtful slur, or stereotype. And schools can model constructive ways of disagreeing. Ideally i would urge that respect for students speech rights provides a train aring ground for exercising rights responsibly. So responding to hurtful speech with more and better speech as the First Amendment generally requires and looks for. And for learning how to have substantive conflict about real issues without gong too far cut off conversation what i call learning liberty by living it. So im going to close with a third example which is the growing number of incidents in which schools reach out, claim they can punish what had students have said offcampus, usually online and off school property. Schools increasingly claim that power to track and punish what students say 24 7 some have hired retired Law Enforcement officers to keep track of their students online communication from their own computers from their homes. Now, remember that the whole rational for giving schools more power to restrict speech than the government has if in the world at large, is this this special environment and purpose of the Public Schools on campus. But schools say they can violate speech that is fully protected by the constitution outside of school if it violates the schools rules of decorum. And they say if we do that, one of the schools standard apply, not the normal scrutiny First Amendment test. U unfortunately schools didnt have this idea on their own, because