Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1471
acknowledged the importance of shielding minors from sexually
explicit or vulgar language. 458 The Court distinguished Tinker on the
ground that the speech in Fraser did not express a political
viewpoint. 459 In sum, Fraser expanded Tinker’s limitations on student
speech, because in order to regulate student speech under Fraser, a
school merely must show that the offensive or vulgar speech would
interfere with the school’s educational mission, and not that it
threatened to cause a substantial and material disruption to the
educational process. 460
Tinker and Fraser gave school officials wide latitude to regulate
student speech on school grounds. 461 Under Tinker, a school can
punish a student for using the middle finger gesture in a school setting
if the school can show that the student’s actions would substantially
and materially disrupt the educational process, while under Fraser, the
school can regulate offensive or vulgar speech, likely including the
middle finger gesture, as long as school officials make a determination
that allowing students to use the gesture in the school would, in some
way, interfere with its “basic educational mission.” 462 Based on these
local school boards have broad discretion to discipline students on campus, and that
courts will not second guess school’s policies absent “gross abuse of discretion”).
458 Fraser, 478 U.S. at 684; see also Thomas, 607 F.2d at 1057 (Newman, J.,
concurring) (declaring that, “[i]f the F.C.C. can act to keep indecent language off the
afternoon airwaves, a school can act to keep indecent language from circulating on
high school grounds”); cf. Pangle v. Bend-Lapine Sch. Dist., 10 P.3d 275, 286 (Or. Ct.
App. 2000) (noting that school authorities act in “surrogate parent role” when
children are at school, and that parents depend on schools to maintain safe and
effective learning environment for their children).
459 Fraser, 478 U.S. at 685. The Court has emphasized that political speech and
criticism of public officials lie at the core of the First Amendment and generally
deserve stringent protection. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270-
72 (1964) (emphasizing our “profound national commitment” to protection of debate
about public issues, including criticism of government and public officials).
460 Milani, supra note 436, at 189, 206 (analyzing student speech cases and
concluding that schools should target regulation of student speech at fighting words
generally, rather than at content of speech).
461 See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (stating that
“the education of the Nation’s youth is primarily the responsibility of parents,
teachers, and state and local school officials, and not of federal judges”); Pico, 457 U.S.
at 863-64 (emphasizing that “school boards have broad discretion in the management
of school affairs”); Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (suggesting that
courts should refrain from interfering with conflicts that arise as part of school’s
ordinary, day-to-day operations).
462 Fraser, 478 U.S. at 685; see also Boroff v. Van Wert City Bd. of Educ., 220 F.3d
465, 468-71 (6th Cir. 2000) (upholding school’s policy of prohibiting students from
wearing T-shirts bearing name of musician Marilyn Manson where school found that
lyrics of Marilyn Manson songs were offensive and contrary to school’s educational