OPINION: Do Students Have A Constitutional Right to Ask Congress to Get Off Their F*cking Asses?

By Jerry Snyder

On the day of the National Student Walkout, a protest seeking legislative action relating to school shootings, Noah Christiansen, a 17-year-old student at McQueen High School, called Rep. Mark Amodei’s (R-NV) office to express his opinion on the necessity for gun control measures. He did so somewhat colorfully, by urging congress to “get off their fucking asses.”

Rep. Amodei’s staffer who took the call, Arturo Garzon, called the school and relayed the incident to administration. The school administration consequently suspended Mr. Christiansen for two days and determined that he may not serve in student government the following year. The school gave Christiansen a one-day reprieve from suspension so he could participate in a debate tournament.

There is a lot of room for opinion on the questions of whether Rep. Amodei’s office scored a public relations win or loss based on this incident. There is also probably some room for opinion as to how the school administration ought to have handled the matter.

What I want to talk about is specifically the question of whether the school violated Mr. Christiansen’s First Amendment rights by punishing him for engaging in the subject speech.

Summary of Relevant United States Supreme Court Cases

The seminal case regarding free speech rights of high school students is Tinker v. Des Moines Ind. Comm. School Dist. (1969). In Tinker, the United States Supreme Court held that a school violated its students’ free speech rights when it suspended five students for wearing black armbands to protest the Vietnam War.

Students participate in a walkout for gun safety at Wooster High School. Image: Ty O’Neil

The Court held that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.” The Court ruled that in order to justify prohibition of a particular expression of opinion voiced by a student, a school district must show that the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” The Court noted that the black armbands constituted speech that did not “intrude upon the work of the schools or the rights of other students.”

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Notably, the speech at issue in Tinker was expressly political speech, which “is at the core of what the First Amendment is designed to protect.”

The Supreme Court has decided a number of cases in the wake of Tinker that limit the extent of the ruling in Tinker. In Bethel School Dist. No. 403 v. Fraser (1986), the court held that the school may punish a student for delivering a speech nominating a fellow student for a student government position using “an elaborate, graphic, and sexually explicit metaphor.”

The school concluded that this speech violated a disciplinary rule which provided that “conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.” Consequently, the school suspended the student for three days. The Supreme Court held that the student’s speech was not entitled to protection because to permit such “vulgar and lewd speech … would undermine the school’s basic educational mission.” The court further noted that speech may be restricted where its content is sexually explicit and the audience may include children.

In Hazelwood School Dist. V. Kuhlmeier (1988) the Supreme Court held that a school did not violate students’ First Amendment rights when it deleted two pages of a school newspaper prior to publication. The deleted stories included a story about three students’ experience with pregnancy, and a story about divorce.

The school concluded that the discussions of sexual activity and birth control were not appropriate for younger students. The court noted a distinction between the questions of “whether the First Amendment requires a school to tolerate particular student speech” and “whether the First Amendment requires a school affirmatively to promote particular student speech.”  The court noted that educators may exercise greater control where the expression occurs in the context of instructional activity such as school theatrical productions or publications. Accordingly, the court held that the standard articulated in Tinker applies only to the question of whether a school may punish student expression and not to the question of whether a school must assist in publishing student expression.

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The Supreme Court next addressed the question in Morse v. Frederick (2007). In that case, a student displayed a banner reading “BONG HITS 4 JESUS” at a school sponsored trip to view the Olympic torch relay. The school principal confiscated the banner and suspended the student. The Supreme Court found that the analytical framework of Tinker was not absolute; that the “substantial disruption” analysis was not necessarily the test to be applied in every case. The Court held that because schools have an “important – indeed perhaps compelling” interest in deterring drug use, the school acted properly in limiting speech that promoted marijuana use.

Summary of the Legal Rule

In Tinker, the Supreme Court held that schools may only restrict student speech where that speech “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” The court has since held that this analysis does not fully apply in instances where the speech at issue is not merely “tolerated” by the school, but is “promoted” by the school by appearing at an assembly or in a school newspaper. The Court has further held that the Tinker “substantial interference” analysis does not apply where schools have an important or compelling interest in limiting the particular expression.

Did McQueen Violate Christiansen’s First Amendment Rights?

The first question is whether Christiansen made the subject speech in the context of a school sponsored event. The Reno Gazette-Journal has reported that Christiansen made the phone call during a 17-minute student walkout. This walkout was not a school-sponsored activity; while the Washoe County School District advised that it would not punish students for participating, it did not sponsor and condone the walkout. As such, this matter falls within what the Hazelwood Court referred to as the question of “whether the First Amendment requires a school to tolerate particular student speech,” and not whether the school must promote that speech.

The next question is whether Mr. Chistiansen’s speech intruded into an area where the school has an important or compelling interest. There is no indication that it does. Mr. Christiansen’s speech does not promote drug use or other activity that the school has an important or compelling interest in regulating. Most importantly, Mr. Christiansen’s call to Rep. Amodei was, at its core, political speech, and as such entitled to the highest degree of protection.

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Because none of the cases that have limited the scope of Tinker apply to the facts here, I think that the core ruling of Tinker defines the rule to be applied: the fundamental question is whether Mr. Christiansen’s call to Rep. Amodei’s office “materially and substantially interfered with the requirements of appropriate discipline in the operation of the school.”

I don’t see facts to support the school’s action. Christiansen made the call during a student walkout, not during a school sponsored activity. There are no facts to indicate that other students even heard the allegedly offensive comment. His comment was made in the context of political speech and as such is at the heart of what the First Amendment protects.

This analysis is not terribly deep; I have not delved into circuit court cases that may be relevant. Furthermore, I can’t pretend to accurately predict what nine people who live in Washington D.C. and wear black robes might do. However, based on the broad principles articulated by Supreme Court cases since Tinker, it seems to me that the school administration, in punishing Christiansen for the statement he made to Rep. Amodei’s office, has violated Mr. Christiansen’s First Amendment rights.


Jerry Snyder has been practicing law for nearly two decades in California and northern Nevada, both in private and government practice. Jerry has represented individuals and businesses of all sizes, from small entrepreneurs to large public companies. Jerry has worked with individuals, companies and communities, and excels at delivering sensible solutions, regardless the size of the client or the scope of the situation. He has extensive experience litigating cases in areas of construction law, water law, corporate governance, real property law, business torts, and intellectual property. 

 

 

 

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8 Comments

  1. I keep reading articles about this and yet none of them actually give a full description of what the student said during the semi-sponsored school walkout.

    How did the person know he was from McQueen? How did the person know his name? How did the person on the phone know that the student was or was not participating in a school walk out?

    If my daughter called up Senator Masto and said..”Stop “F”ing killing babies you abortion supporting nazi.” during the school day and identified herself as a high school student from Sparks High School, do you have any doubt that she wouldn’t get called into the Principles office?

    Anyone who sees this issue as a free speech issue is blindly protecting a political compatriot and not looking at it clearly.

    The problem was the “F” bomb, not the political speech. Get that? You see, the political speech is not dependent on that particular use of the “F” bomb. He was suspended for the vulgar language. Not the protected political speech.

    Quick…replay the whole scenario in your head but DELETE the kid dropping the “F” bomb. Does he get suspended? Nope. Does he even get a call sent to McQueen administration? Nope.

    The case is pretty simple, and all of the gyrations to protect an overly entitled child from his own faulted actions is disappointing. Because instead of learning a lesson and having this kid realize that there are REAL consequences to his actions, he is not going to go into the rest of his life thinking that he can bully anyone he wants to and use the power of the legal system to further bully them into submission.

    • Thank you, Robert! FINALLY, someone with a voice of reason rather than emotion who truly understands the core issue! Actions have consequences but evidently this kid will have to learn that the hard way when real life bites him in the “f-ing ass” in adulthood.

    • Hey Robert, have you been in a high school lately? If every student who dropped an “f bomb” received a 2-day suspension, half the school wouldn’t be in class. I agree that the language itself is not cause for celebration — just because vulgarity is regularly modeled by our president (who is celebrated for it, rather than held accountable) doesn’t make it a good precedent to set. But the response was wholly over the top. If the school had responded reasonably and appropriately — perhaps with a reprimand and a conversation about how our language matters, or even a school-wide forum on what it means to be representing not only ourselves but also our schools when we call up our representatives’ offices — we wouldn’t be talking about it on the internet right now.

      • This wasn’t a discussion between two classmates. This wasn’t an “everyday” F bomb. I would agree that it would have been over the top to suspend for an everyday “F” Bomb. But clearly we know the facts say that this was a call to an office with a person who is required to answer the phones. And a two day suspension is fair for doing something of THAT nature.

  2. Rep. Amodei’s office scored a major public relations loss because Mr. Anodei’s staffer, Arturo Garzon, who took the call from Mr. Noah Christian, the 17 year old student at McQueen High School, who was suspended by an unnamed school administrator ostensibly for urging Congress to “get off their fucking asses,” because one would think, that of all the people who should have at least a basic knowledge of the First Amendment, should be our elected representatives & their staff.
    First, why did Amodei’s staffer “drop a dime “ (rat him out), on a high school student by calling the school & reporting that student’s fully protected First Amendment right of political expression was even any of the school’s concern?
    Is it any wonder students are angry at our elected representatives when those politicians fail to do their job? To do their job, politicians must be cognizant of the laws they’ve taken an oath to uphold.
    Amodei’s staffer, who complained to a school official about the student’s speech, is the only person who should have been suspended.
    When a State Senator and/or staff do not know the law of the land, our Constitution, how do those politicians expect to be respected by the people they serve, when they do not respect the people they serve? You do not respect constituents when you do not care enough about the law to even have an awareness that this student was merely exercising his fully protected First Amendment right to tell Congress to “get off their fucking asses.”
    Why did Nevada Republican Senator Amodei not direct his staff to be aware of the laws he has taken an oath to uphold? Amodei &staff failed this student. So did the school who improperly & illegally suspended the student for exercising his right of speech, which did not interfere with any school activity.
    If a state Senator’s office chooses to oppress the rights of a child, whose rights were clearly violated, does not piss you off, then you have chosen the side of the oppressors.

  3. Noah Christiansen can say whatever he wants, but what happened to dignity, respect for others and self control. His mother, who was highlighted in the RGJ the other day, should be embarrassed – as should he.

    • Noah Christiansen is a patriot who expressed, in “colorful language,” his concerns. I believe his mother should be proud, not embarrassed, that her son cares enough about current political events to speak his mind.

    • May be the example of our President is why he fills he can speak this way. Students learn from example, and brother, do we have horrible examples in this Trump/Republican world. Very sad.

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