Wednesday Writs: Schoolboy Innuendo Edition

Matthew Fraser

L1: In the halcyon days of 1983, back when children still went to school, a teenage boy who thought he was clever, as all teenage boys do, delivered this stirring student body vice-presidential nomination speech:

I know a man who is rock hard – he’s firm in his pants, he’s firm in his shirt, his character is firm – but most of all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts – he drives hard, pushing and pushing until finally – he succeeds. Jeff is a man who will go to the very end – even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he’ll never come between us and the best our school can be.

The boy, Matthew Fraser, gave the speech before the entire student body at an assembly at Bethel High School in Washington State.  Predictably, the student body responded raucously with hoots and hollers, though some of the younger students reportedly appeared confused and “embarrassed.”  Fraser had been advised by teachers ahead of time that the obvious sexual entendres were inappropriate and that he should not deliver the speech as written; nevertheless, he did, earning himself a three day suspension. Furthermore, the junior was advised that he would be disqualified from a list of candidates vying to speak at the school’s graduation ceremony in May.

Fraser availed himself of the school system’s grievance procedure. The hearing officer ruled in the school’s favor, deeming Fraser’s speech “indecent, lewd, and offensive” and meeting the definition of obscene as it was intended in the school’s conduct policy. Fraser’s punishment stood, and he served two of his three days of suspension before being permitted back in school on the third day.

Fraser, through his father, then filed suit in the US District Court for Western Washington against the Bethel School District, alleging violation of his First Amendment right to free speech. The District Court agreed, and found that the disciplinary policy was too broad and too vague. Furthermore, the Court found the removal of Frasier’s eligibility to speak at graduation to be a violation of Due Process, because that particular consequence was not presented as a possibility in the disciplinary policy. He was awarded $278 in damages and over $12,000 in attorney’s fees. The Court also enjoined the school from preventing Fraser from speaking at commencement. (By the time the case made it through the District Court, the school had already removed Fraser’s name from the ballot for electing commencement speakers. Nevertheless, Fraser won by write-in vote. He did indeed speak at the ceremony. No cringey euphemisms were reported.)

The School District appealed to the 9th Circuit, and lost. The appeals court found there to be little to no difference between the Fraser case and that of the plaintiff in Tinker v. Des Moines Independent Community School District in 1969. In Tinker, five students, four of them the Tinker siblings, planned to wear black arm bands to their schools to symbolize their protest of the war in Vietnam. The school district learned of the idea, and met to enact a policy specifically prohibiting the wearing of arm bands and providing that those who did so would be suspended until willing to comply. The plaintiffs proceeded as planned. They appealed their subsequent suspensions, lost, and filed suit, losing in federal court and eventually winding up at the Supreme Court. There, it was held that the armbands were protected political speech and were not disruptive – indeed, no disruptions were reported when the bands were worn to school. The Court further ruled that in order to restrict the students’ first amendment rights, a school must show some constitutionally valid reason for doing so, not just a desire to suppress the controversy raised by unpopular opinions.

The Ninth Circuit apparently believed that sexual innuendo was on par with protest against war as “political” speech. But the School District was not willing to concede, and took our case of the week, Bethel School District v. Fraser, to the Supreme Court.

The result was a 7-2 decision, with the plurality opinion written by Chief Justice Burger. First, Burger noted that the armbands in controversy in Tinker were noted not to be “speech or action that intrudes upon the work of the schools or the rights of other students.” From there, the Court recognized a duty of schools to impart the “habits and manners of civility” into students- which included “tolerance of divergent political and religious views.” Though it may seem almost laughable in our modern political climate, Burger cited Congress as an example of civility in public discourse:

In our Nation’s legislative halls, where some of the most vigorous political debates in our society are carried on, there are rules prohibiting the use of expressions offensive to other participants in the debate. The Manual of Parliamentary Practice, drafted by Thomas Jefferson and adopted by the House of Representatives to govern the proceedings in that body, prohibits the use of “impertinent” speech during debate, and likewise provides that “[n]o person is to use indecent language against the proceedings of the House.” Jefferson’s Manual of Parliamentary Practice §§ 359, 360, reprinted in Manual and Rules of House of Representatives, H.R. Doc. No. 97-271, pp. 158-159 (1982); see id. at 111, n. a (Jefferson’s Manual governs the House in all cases to which it applies). The Rules of Debate applicable in the Senate likewise provide that a Senator may be called to order for imputing improper motives to another Senator or for referring offensively to any state.

The Court conceded that the First Amendment protects even offensive speech, citing the 1971 case of Cohen v. California in which the Court invalidated the prosecution of a man for wearing a jacket reading “Fuck the Draft” in the halls of a California court house. However, reasoned the Court, what is permissible for adults in a public place is not necessarily permissible for minors in a public school. The Court noted that states have the right to “sanction”certain methods of expression, as do public schools, by extension:

The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy.

The pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students — indeed, to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. The speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality.

As the Court pointed out, protecting children from lewdness or obscenity has long been within the power of government; the Court had previously ruled so in cases involving FTC guidelines and laws prohibiting the sale of pornography to children. Thus, finding Fraser’s arguments to be flaccid, the Court reversed the judgment of the lower court.

Justice Blackmun concurred in the result, though he did not join the opinion or draft his own concurrence. Justice Brennan, also concurring in the result, wrote separately to affirm what he believed to be the narrowness of the Court’s ruling. Brennan cautioned that the power of the school board to control the free expression of students is not limitless, though he found it appropriate in this case, despite his view that Fraser’s speech was much more innocuous than the plurality suggested.

Justice Marshall wrote a brief dissent, expressing his agreement with the principles Brennan outlined in his concurrence, but arguing that the school board showed no evidence that Fraser’s speech caused a disruption to the education of students. He would have affirmed the judgment of the lower court.

Justice Stevens began his dissent by pointing out that, in his youth, the famous words of Rhett Butler, “Frankly my dear, I don’t give a damn”, shocked the nation, though no one would bat an eye at the time of Mr. Fraser’s speech. Stevens conceded that a school “must regulate the content as well as the style of student speech in carrying out its educational mission”; however, Stevens believed that Matthew Fraser was deprived of Due Process in the imposition of punishment.

Stevens praised Fraser as an “outstanding young man” of academic achievement, who was popular with the student body (based on their voting for him to speak at graduation) and likely knew his audience well enough to know whether or not they would be offended by his speech- and certainly knew them better than the justices:

More importantly, it indicates that he was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of a four-letter word — or a sexual metaphor — than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime.

Stevens did not believe that Fraser had any reason to know that he would be suspended for his conduct. Although Fraser may have been aware of the school policy against disruptive conduct, Stevens found it reasonable that Fraser would not have expected disruption, and in deed, found that there was no evidence of the same- a “boisterous” reaction, but no disruption to education. Stevens disagreed that any of the language in the speech was lewd or profane; it was a sexual metaphor, obviously, but the conduct policy did not give Fraser reason to believe his speech would be in violation. And though several teachers who read the speech in advance advised against delivering it, none of them apparently indicated to Fraser that he might face punishment for doing so.

But, that speech was so clearly inappropriate that Matthew Fraser should have known there would be consequences, right? Not so, said Stevens; he believed it unlikely the boy would have given the speech if he had known that he would be suspended for doing so. Further, Stevens believed that such argument should skew in favor of free expression. Finally, Fraser was in a position to know whether his words would be disruptive or offensive to his intended audience, he himself being one of their peers. Likewise, Stevens concluded, because the lower courts who ruled in Fraser’s favor are closer to that local community, the high court should defer to their  judgment of “community standards”.

Matthew Fraser went on to graduate from UC Berkeley and became a debate coach at Stanford University. He was also the founder and CEO of Education Unlimited, a company which holds education camps and programs for students in grades 4-12.

L2: Speaking of the First Amendment, a pastor in Florida has been arrested for holding church services in violation of COVID-19 related “unlawful assembly” laws.

L3: Who owns LaBron James’ tattoos?

L4: The State of New York has canceled the July 2020 sitting of the Bar Exam due to COVID-19.

L5: With other states likely to follow New York’s path, the legal community is exploring other options for 2020 grads (including “diploma privilege” which used to be a thing.)

L6: Grand jury proceedings are secret, even those from nearly 75 years ago. An effort to unseal the records from a 1946 lynching of two black couples in Georgia has failed at the 11th Circuit Court of Appeals, but advocates of the unsealing say they will take their case to the Supremes.

L7: New Yorkers have become persona non grata in many states aiming to limit Corona refugees from crossing their borders, but states should be aware of the legal implications of their actions.

L8: Our last edition of writs featured a turn of the twentieth century case regarding quarantines, but there is much more to the legal history of epidemics in America.

L9: Has the sordid tale of Joe Exotic and his nemesis, Carole Baskin, led you to think you might want to own a tiger of your own? Find out here if it’s legal where you are.