Free Speech Values, Public Schools, and the Role of Judicial Deference

Abstract

Some of the plainest axioms of free speech law are among those most widely and unselfconsciously violated by reviewing courts. For example, courts often ignore the claims of the common sense principle that the scope of application of free speech protection should extend up to but not beyond the point where the broad purposes or values arguably underlying the free speech clause are no longer significantly implicated. Similarly, given the important interests in free speech rights, responsible political experimentation, and the role of local demo- cratic institutions, the courts should tend to defer to local elected officials on free speech issues where, but only where, the local political decision-makers possess the relevant, decisive comparative advantage with respect to the precise free speech issue at hand. These basic principles are commonly violated in areas such as obscenity and pornography, but their widespread violation is perhaps most graphically seen in the numerous recent cases discussing the free speech right claims of public school students. This Article depicts the current judicial indifference to the above principles in attempting to resolve the student speech cases and encourages a movement toward greater fidelity to those principles.