Washington Law Review


Jerry C. Chiang


The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations of student speech. This Comment clarifies the methodology applied in Fraser by demonstrating that the Court considered several distinct factors lower courts should analyze when determining whether student speech is plainly offensive. This Comment further proposes an analytical framework that follows the Court's approach in Fraser; lower courts evaluating the propriety of student speech should focus on the content, context, and consequence of the speech.

First Page