A Benign Prior Restraint Rule for Public School Classroom Speech

This Article is a contribution to a symposium on schools and free speech. It advances the claim that the First Amendment doctrines that apply to the classroom should adopt a benign prior restraint rule. In the case of teacher classroom speech, the Garcetti rule should apply where the government’s action in interfering with the speech constitutes a prior restraint—the First Amendment should not reach such interference. In cases where a teacher first speaks and then is later punished for that speech, however, basic notions of due process and the dangers of arbitrary governmental decision making are far more pressing, and the Pickering balance should be applied.

In the case of student speech, the Hazelwood rule is well-suited to the prior restraint of classroom speech because it encourages the government to lay out its legitimate pedagogical justifications for restraint in advance. But as with teacher speech, punishing student speech only after it is made or published gives rise to significant autonomy interests, due process interests, and marketplace of ideas concerns. Thus, this sort of interference should have to contend with the more demanding standard articulated in Tinker v. Des Moines Independent Community School District.

As this Article will show, this proposed rule distinguishing between prior restraints and later punishments is not a far step from either the Garcetti decision or the Hazelwood decision. Working within the categorical structure of the existing cases, it would also introduce a meaningful limit on the tendency of government administrators (and sometimes teachers) to act arbitrarily against ideas that they themselves disfavor, or more importantly, that powerful voices in the community disfavor.