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Tinker's Timeless Teaching: Why the Heckler's Veto Should Not Be Allowed in Public High Schools

51 Pages Posted: 3 Feb 2016  

Katherine Mayo Portner

University of Mississippi, School of Law, Students

Date Written: January 31, 2016

Abstract

Reconciling the heckler’s veto doctrine with the special environment of a public high school has proven difficult for both the courts and school administrators alike.  Allowing students to effectively censor speech with which they disagree through threats of violence and hostility squarely contradicts the fundamental First Amendment heckler’s veto doctrine.  However, preventing a substantial disruption and preserving a conducive learning environment continues to be of highest concern to school officials. 

This article is the first to consider the heckler’s veto in public high schools after the wake of Dariano v. Morgan Hill Unified School District. I argue that it is possible to preserve the heckler’s veto doctrine within public schools in accordance with Tinker v. Des Moines Independent School District and other school speech precedent. At first blush, the seminal school speech case, Tinker v. Des Moines Independent School District seems to be at odds with the heckler’s veto doctrine. But, in reality, Tinker actually reaffirms the heckler’s veto doctrine. 

This article evaluates two crucial cases from the Fifth Circuit, relied upon by Tinker and important language from Justice Fortas’ opinion in Tinker itself, establishing that Tinker’s substantial disruption standard applies only to disruption caused by speakers, not disruption caused by listeners.  Thus, the Tinker standard actually protects students against a heckler’s veto. 

Additionally, this article argues that that derogatory, or quasi-bullying, speech in public schools is analogous to lewd or vulgar speech and should be considered an exception under Tinker.  Therefore, such speech is not subjected to Tinker’s “substantial disruption” standard.  Finally, this article also provides a two-tiered analysis, along with a list of precautions, for school administrators to take in order to prevent a heckler’s veto and protect student’s fundamental rights within the public high school.

Keywords: Heckler's Veto, Dariano, school speech, Tinker, Tinker exceptions, First Amendment, free speech, derogatory expression,

Suggested Citation

Portner, Katherine Mayo, Tinker's Timeless Teaching: Why the Heckler's Veto Should Not Be Allowed in Public High Schools (January 31, 2016). Available at SSRN: https://ssrn.com/abstract=2725675 or http://dx.doi.org/10.2139/ssrn.2725675

Katherine Mayo Portner (Contact Author)

University of Mississippi, School of Law, Students ( email )

MS 38677
United States

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