Yes, Robert, There Is Free Expression


Today, in another stand for free expression, the San Diego ACLU successfully defended the right of a middle school student to wear a t-shirt to school that some may find offensive, but represents classic political speech fully protected by state and federal law.

On January 15, 2015, a teacher and counselor at Standley Middle School objected to a t-shirt worn by 7th grader, Robert Nelson. The shirt bore an illustration of President Obama and text reading, “Somewhere in Kenya a village is missing an idiot.” Nelson was brought to the school office and told by a vice principal that he could not wear the shirt at school—though he had worn it several times previously without incident.

In a letter to the school dated January 29, 2015, David Loy, legal director of the ACLU of San Diego & Imperial Counties, noted that a public school must protect freedom of speech and the exchange of ideas. He called on the principal to allow Nelson to continue to wear his shirt as he chose, and to alert school staff about the student’s constitutional rights. It also requested that any references to this incident be expunged from school records.

Loy took exception to the school’s handling of the incident because school staff clearly violated Nelson’s right to freedom of speech under both federal and state law. The First Amendment protects a public school student’s right to freedom of speech unless the speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” according to the landmark Supreme Court decision on student expression, Tinker v. Des Moines Independent Community School District. 

The t-shirt, while offensive to some, or perhaps many, comments on a political topic without creating any genuine threat of disruption to the school beyond what any speech might typically occur at school. In Tinker, the Supreme Court upheld the right of students to wear black armbands to school in protest of the Vietnam War. Such political speech is “at the core of what the First Amendment is designed to protect,” and cannot be prohibited based on the “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.

California’s law protects student speech even more strongly than the First Amendment, saying, “a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption. Schools may only prohibit speech that incites disruption…or because the manner of expression is so inflammatory that the speech itself provokes the disturbance.”

Today, the San Diego Unified School District general counsel’s office confirmed that Nelson can wear his shirt to school. The ACLU is glad this matter has been resolved and is proud to defend freedom of speech for all persons, especially young people.