Lewd, Vulgar, Plainly-Offensive, and Obscene Speech

Lewd, Vulgar, Plainly-Offensive, and Obscene Speech

DOI: 10.4018/978-1-4666-9519-1.ch008
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Abstract

This chapter focuses on the Bethel School District No. 403 v. Fraser (1986) case – the United States Supreme Court's second review of students' speech rights under the Free Speech Clause of the First Amendment. It discusses the test created in the case for determining when schools can regulate students' speech. This test, referred to as the Bethel test or the Fraser test authorizes schools to censor students' speech if the speech is vulgar, lewd, plainly offensive or obscene. The chapter also discusses the Supreme Court's decision on the scope of students' free speech rights. The ultimate goal of the chapter is to analyze the Bethel School District No. 403 v. Fraser case in order to determine if it empowers schools to censor off-campus student speech.
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After Tinker v. Des Moines Independent Community School District in 1969, the United States Supreme Court was silent on students’ First Amendment right to free speech for almost two decades. Finally, in 1986, in Bethel School District No. 403 v. Fraser, the Court revisited the scope of school authority to censor students’ speech under the Free Speech Clause. In this case, the Supreme Court created another test for determining whether schools can constitutionally censor student speech: if the speech is vulgar, lewd, plainly offensive or obscene, it can be constitutionally censored. The Court, however, failed to define these terms, appearing to leave them to common understanding. Unlike the expansive approach to student speech in Tinker v. Des Moines Independent Community School District (1969), the Bethel School District No. 403 v. Fraser (1986) case constricted students’ free speech rights as it carved out an entire category of speech for school censorship. While the case involved on-campus student speech, it sheds some light on the Court’s thinking about off-campus student speech. However, as the Supreme Court stated in 2007, the “mode of analysis employed in Fraser [Bethel case] is not entirely clear” (Morse v. Frederick, 2007, p. 404). We examine the Bethel case as well as the test created in the case in order to determine what guidance we can glean therein about the rights of students to speak off-campus.

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