Lewd, Vulgar, Plainly-Offensive, and Obscene Speech

Main Focus Of The Chapter

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.