Ruling Holds Pupil Can Be Punished for Lewd Speech

The Supreme Court bolstered the authority of school officials Monday, saying that they may suspend a student for giving a sexually suggestive speech.

Outgoing Chief Justice Warren E. Burger said that schools must teach “the habits and manners of civility.” Moreover, he said, the First Amendment was designed to protect political speech and not what he called “lewd and indecent” expression.

“The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as (Matthew Fraser’s) would undermine the school’s basic educational mission,” Burger wrote for the 7-2 majority. “It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”

In 1983, Fraser, a high school senior from Spanaway, Wash., gave a one-minute speech endorsing a friend for a school office. The speech contained no obscene words but made several sexual allusions. Among other things, he referred to the candidate as “a man who is firm--he’s firm in his pants, he’s firm in his shirt and his character is firm.”

After being suspended for three days for “disruptive conduct,” Fraser sued, charging that his free speech rights had been violated.

A federal district and appeals court ruled for the student, saying that school authorities do not have “unbridled discretion” in deciding whether a student’s speech is “decent.” The lower courts based their decision on a 1969 Supreme Court ruling that said that students’ right to free speech included the right to wear black armbands as a protest against the Vietnam War.

On Monday, Burger chided the lower courts for ignoring “the marked distinction between the political message of the armbands and the sexual content of the student’s speech in this case” (Bethel School District vs. Fraser, 84-1667).

In dissent, Justice John Paul Stevens, joined by Thurgood Marshall, said that the court majority was being unduly prudish. The phrase, “Frankly, my dear, I don’t give a damn,” from the movie “Gone With the Wind” was considered shocking “when I was a high school student,” Stevens said.

School Searches Broadened

Last year, the high court gave school officials more authority in searching the belongings of students whom they suspected of possessing drugs.

“That case said the Fourth Amendment rights (against unreasonable searches and seizures) for students are not the same as for adults. This case said the First Amendment rights of students are not the same as the First Amendment rights of adults,” said Gwendolyn Gregory, counsel for the National School Boards Assn., which had urged the high court to give schools more authority in setting standards.

But Fraser told United Press International on Monday that he believes schools will be able to use the high court ruling “to curtail the rights of students they simply don’t want to hear from.”

“Although this no longer directly affects me, I’m very concerned about the limitations on free speech and its chilling effects,” said Fraser, 21, now a senior at the University of California at Berkeley.

In a second case testing the limits of free expression, the justices upheld the closing of an adult bookstore for one year after police officers observed sex acts taking place on the premises.

A New York state law authorizes the closing of buildings used for “prostitution and lewdness,” and a district attorney in Erie County, N.Y., obtained an order shutting down the Village Books and News Store in Kenmore, N.Y., after a police investigation.

The New York Court of Appeals threw out the order, concluding that the store was protected under the First Amendment and that the move to close it was “broader than necessary to (halt) the illicit sexual activities.”

The high court disagreed. “Neither the press nor booksellers may claim special protection from government regulations of general applicability simply by virtue of their First Amendment-protected activities,” Burger wrote for a 6-3 majority.

The chief justice said that the appeals court had erred in relying on a 1968 ruling that concerned the burning of draft cards. “Unlike the symbolic draft-card burning in (the earlier case), the sexual activity carried on in this case manifests absolutely no element of protected expression,” he said.

Justice Harry A. Blackmun, joined by Marshall and William J. Brennan Jr., dissented in the bookstore case (Arcara vs. Cloud Books, 85-437), saying that the court’s endorsement of New York’s public nuisance law “creates a loophole through which counties can suppress undesirable, protected speech without confronting the protections of the First Amendment.”