In re Amir X.S., No. 26219 (S.C. Nov. 6, 2006)
The South Carolina supreme court has ruled that a state statute making it illegal for a person intentionally to interfere with or disturb students or teachers does not violate the First Amendment’s free speech protections. The law was challenged by a student who was judged delinquent for violating it by willfully, unlawfully, and unnecessarily interfering with and disturbing the students and teachers at Southside Learning Center. The court imposed 90 days custody in a juvenile facility and one year’s probation. The student appealed, arguing that the statute is unconstitutionally vague and overly broad because it punishes a substantial amount of protected free speech. The high court affirmed a lower court decision upholding the statute.
Addressing the issue of whether the statute was overly broad, the high court began by distinguishing between conduct in general, which is not protected by the First Amendment, and expressive conduct, which is protected like the Vietnam protest armbands in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The court determined that analysis of the statute "is more appropriately derived from cases analyzing statutes targeting conduct termed ‘disruptive’ to schools, with no specific prohibition otherwise on First Amendment expressive conduct." After reviewing case law from other jurisdictions that had dealt with the overbreadth issue in relation to school disturbance laws, the court concluded that the statute "does not substantially prohibit First Amendment speech." The >statute clearly applies to expression when accompanied by disorder or disturbance of schools as contemplated in Tinker, and does not impose direct restrictions on silent, passive expression of opinion. As a result, the court found "[s]uch conduct is not protected by the First Amendment" and held that the statute "is not a substantial threat to protected speech requiring overbreadth adjudication."
Turning to the vagueness issue, the court concluded that the student lacked legal standing to make a facial vagueness challenge to the constitutionality of the law. The student’s behavior, which was willfully disruptive and unnecessary, fell within the "most narrow application" of the statute. As a result, this was a situation where "one to whose conduct the law clearly applies does not have standing to challenge it for vagueness as applied to the conduct of others." The court noted that the student had prior notice that such conduct was prohibited, as he had been previously charged for a violation under the same statute.
In re Amir X.S., No. 26219 (S.C. Nov. 6, 2006)
[Full opinion]
[Editor’s Note: A school’s discretion to restrict student expressive conduct is at issue in a much-noted case that has been appealed to the U.S. Supreme Court, Juneau School Board v. Frederick, No. 06-278, affectionately known to school law practitioners as the "Bong Hits 4 Jesus" case. NSBA and the American Association of School Administrators have filed an amicus brief in support of the school board, asking the Court to reverse the Ninth Circuit’s decision in the case and clarify the law in this area. Lead authors on the brief were COSA board member Michael E. Smith and Cathleen C. Hall of Lozano Smith in Fresno, California, who contributed their services pro bono. The brief, which provides an excellent overview of the state of the law concerning student free speech, is below, as are news of the appeal and a summary of the Ninth Circuit’s decision.]
[NSBA amicus brief in Juneau School Board v. Frederick]
>[NSBA School Law pages on appeal to Supreme Court]
[NSBA School Law pages on Frederick v. Morse]