"The First Amendment Does Not Permit Schools to Prohibit Students from Engaging in the Factual, Nonthreatening – Reason
From Starbuck v. Williamsburg James City County School Bd., decided yesterday by the Fourth Circuit (Judge Diana Gribbon Motz, joined by Chief Judge Roger Gregory and Judge James Wynn):
{Because the district court dismissed this case on a Rule 12(b)(6) motion, we relate the facts as set forth in Starbuck's amended complaint.} On February 15, 2018, the day after the horrific mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, Jonathan Starbuck engaged in a conversation with his classmates about the shooting. Starbuck alleges that "[n]o student within the conversation made any threat" and that the conversation was factual. Starbuck "made remarks questioning the intent of the shooter, stating that the shooter would be capable of more harm had he wanted to, noting [the shooter's] possession of explosives and considering the time the shooter was left alone within the building unchallenged by local law enforcement." A teacher overheard the conversation and reported it to the local police and school administration.
As a result, the school removed Starbuck from classes for the remainder of the school day. During that time, which Starbuck refers to as an "in-school suspension," he alleges that various school officials "interrogat[ed]" him. The "[s]chool [p]olice officer investigated and cleared the [teacher's] report as unfounded" because the officer concluded "there was no threat made and no criminal offense occurred."
That evening, an assistant principal informed Starbuck's parent that Starbuck faced a two-day out-of-school suspension. Starbuck maintains that concerns for his "own safety" constituted the reason given for the in-school suspension, and unspecified "[t]hreats" constituted the reason given for the out-of-school suspension. The following week, Starbuck, along with his brother and mother, attended a meeting with various school officials including the assistant principal and a representative from the School Board.
Following this meeting and after receiving a formal notice of the out-of-school suspension, Starbuck submitted a written notice of appeal to the School Board. Three months later, in May 2018, after considering Starbuck's arguments, the School Board "found the suspension was proper" stating the reason for the suspension as "[c]lassroom [d]isturbance."
This, the Fourth Circuit said, would violate the First Amendment (again, if the facts are as alleged):
In interpreting the First Amendment, the Supreme Court has long held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Student speech falls within the protection of the First Amendment unless it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others," or (at least as applied to on-campus speech) is "indecent," "lewd," or "vulgar," "promotes illegal drug use," or is communicated through a school-sponsored activity. Starbuck's speech does not fall within any of these categories.
According to his complaint, Starbuck only engaged in a factual conversation with his peers about a current event that is uniquely salient to the lives of American teenagers, a school shooting. Schools cannot silence such student speech on the basis that it communicates controversial or upsetting ideas. To do so would be incompatible with the very purpose of public education. Cf. W. Va. State Bd. of Educ. v. Barnette (1943) ("That [boards of education] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source."); Tinker v. Des Moines Indep. School Dist. (1969) (noting that "personal intercommunication among the students" is "an important part of the educational process").
The School Board relies on cases in which courts have "agreed that language reasonably perceived as threatening school violence is not constitutionally protected." We do not disagree. But Starbuck's remarks, as described in his complaint (which we must view in the light most favorable to him), were non-threatening statements about the tragedy that any student could have uttered in response to the news. For "school officials to justify prohibition of a particular expression of opinion, [they] must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."
The First Amendment does not permit schools to prohibit students from engaging in the factual, nonthreatening speech alleged here.
Congratulations to University of Virginia School of Law Appellate Litigation Clinic students Jacob Larson and Benjamin Lerman, who argued the case for plaintiff and were on the briefs; to Gregory Eng, who was also on the briefs; and to Prof. Scott Ballenger, who was counsel of record.
View original post here:
"The First Amendment Does Not Permit Schools to Prohibit Students from Engaging in the Factual, Nonthreatening - Reason
- Mamdanis thin-skinned press secretary blocks social media comments a clear First Amendment violation, critics say - New York Post - February 26th, 2026 [February 26th, 2026]
- A Childrens Book Writer Clashed With Trump. Now Shes Defending The First Amendment - SheKnows - February 26th, 2026 [February 26th, 2026]
- Christian nationalism threatens First Amendment freedoms: The right to worship any way you desire - MS NOW - February 26th, 2026 [February 26th, 2026]
- Age Limits on Bodybuilding Supplements: Inside the First Amendment Battle for Teen Health - Live Media News - February 26th, 2026 [February 26th, 2026]
- Sorry FTC, the First Amendment Trumps Antitrust Law - RealClearMarkets - February 26th, 2026 [February 26th, 2026]
- Letter: Utah bill targeting protesters is a frontal assault on First Amendment rights - The Salt Lake Tribune - February 22nd, 2026 [February 22nd, 2026]
- First Amendment Troops The ResistDance - Dance Magazine - February 22nd, 2026 [February 22nd, 2026]
- Gov. Hochuls crackdown on AI-generated political speech wont pass the First Amendment test - New York Post - February 22nd, 2026 [February 22nd, 2026]
- Utah bill cracking down on protests criticized as invasion of our First Amendment rights - Utah News Dispatch - February 22nd, 2026 [February 22nd, 2026]
- The First Amendment in flux - The Minnesota Daily - February 22nd, 2026 [February 22nd, 2026]
- Attorney William Brewer on New Yorks Even Year Election Law and the First Amendment - First Amendment Watch - February 22nd, 2026 [February 22nd, 2026]
- Supporting and Implementing Truth as a Free Speech Value - | Knight First Amendment Institute - February 22nd, 2026 [February 22nd, 2026]
- Editorial: Reading between the lines of the First Amendment - TribLIVE.com - February 22nd, 2026 [February 22nd, 2026]
- Press Release: Representative Dave Min Raises First Amendment Concerns in Letter to FCC Chairman - Quiver Quantitative - February 22nd, 2026 [February 22nd, 2026]
- In a Scorching Order, Federal Judge Rejects Trumps Attempt to Trample the First Amendment and Rewrite Americas Antebellum Past - Ms. Magazine - February 22nd, 2026 [February 22nd, 2026]
- The Anti-Homelessness Plot Against the First Amendment - The New Republic - February 14th, 2026 [February 14th, 2026]
- In the News: Thomas Berg on Competing First Amendment Rights - Newsroom | University of St. Thomas - February 14th, 2026 [February 14th, 2026]
- New Knight Institute Initiative to Focus on Reconstructing Free Expression After Trump - | Knight First Amendment Institute - February 14th, 2026 [February 14th, 2026]
- Two Universities. Two Posters. One First Amendment Problem. - FIRE | Foundation for Individual Rights and Expression - February 14th, 2026 [February 14th, 2026]
- Haywood school district accused of First Amendment violation after Memphis rapper speaks to students - FOX13 Memphis - February 14th, 2026 [February 14th, 2026]
- Judge Rules Against Hegseth, Finding That He Trampled on Senator Kellys First Amendment Freedoms - Talking Points Memo - February 14th, 2026 [February 14th, 2026]
- Opinion | Don Lemon and the First Amendment - The Wall Street Journal - February 7th, 2026 [February 7th, 2026]
- The First Amendment and Lincolns Constitutional Legacy: Lectures in Law and Humanities focus on the history of Americans rights - Clemson News - February 7th, 2026 [February 7th, 2026]
- Can students be punished for protesting during the school day? First amendment expert weighs in - Fox 59 - February 7th, 2026 [February 7th, 2026]
- In the News: Julie Jonas on Don Lemon Arrest and the First Amendment - Newsroom | University of St. Thomas - February 7th, 2026 [February 7th, 2026]
- Nevada Fake Elector Case Resumes With Debate Over Intent Behind 2020 Pro-Trump Ceremony - First Amendment Watch - February 7th, 2026 [February 7th, 2026]
- Kentuckys Second Amendment warriors cannot stay silent as the First Amendment dies - Forward Kentucky - February 7th, 2026 [February 7th, 2026]
- Banned Books, Free Speech, and the First Amendment - Law.com - February 7th, 2026 [February 7th, 2026]
- Washington Post Cuts a Third of Its Staff in a Blow to a Legendary News Brand - First Amendment Watch - February 7th, 2026 [February 7th, 2026]
- Understanding what First Amendment rights students have when protesting ICE - WTHR - February 7th, 2026 [February 7th, 2026]
- Don Lemon Says a Dozen Agents Were Sent To Arrest Him Even Though He Offered To Turn Himself In - First Amendment Watch - February 4th, 2026 [February 4th, 2026]
- VERIFY: Yes, student protests are protected under the First Amendment, but schools can still discipline students for missing class - rocketcitynow.com - February 4th, 2026 [February 4th, 2026]
- Video First amendment lawyer reacts to arrest of Don Lemon - ABC News - February 1st, 2026 [February 1st, 2026]
- Mark Levin: Interference is not a First Amendment right - Fox News - February 1st, 2026 [February 1st, 2026]
- Can You Protest Inside or Near a Church? First Amendment Analysis - Freedom Forum - February 1st, 2026 [February 1st, 2026]
- First Amendment lawyers say Minneapolis ICE observers are protected by Constitution - Minnesota Reformer - February 1st, 2026 [February 1st, 2026]
- Opinion | After the Minneapolis shootings, a reminder of what the First Amendment protects - Star Tribune - February 1st, 2026 [February 1st, 2026]
- Trump Border Czar Suggests First Amendment Isnt All That Important - The New Republic - February 1st, 2026 [February 1st, 2026]
- The First Amendment turned upside down: Buckley at 50 - Citizens for Responsibility and Ethics in Washington - February 1st, 2026 [February 1st, 2026]
- The Recap: Trump takes a dump on the First Amendment, plus his asinine Fed chair nominee - Daily Kos - February 1st, 2026 [February 1st, 2026]
- Student sues UMass Amherst on First Amendment rights, after school suspends him - NEPM - February 1st, 2026 [February 1st, 2026]
- This is a vendetta against the press: journalists warn of threat to First Amendment - Northern News Now - February 1st, 2026 [February 1st, 2026]
- California prohibits its teachers from talking about a student's gender identity to their parents. That raises First Amendment concerns. - FIRE |... - February 1st, 2026 [February 1st, 2026]
- First Amendment and what it means to teen-agers - hngnews.com - February 1st, 2026 [February 1st, 2026]
- Don Lemon charged with interfering with First Amendment rights at church protest - NBC News - February 1st, 2026 [February 1st, 2026]
- First Amendment expert links religious freedom to global interfaith work in Spokane talk - FVS News - February 1st, 2026 [February 1st, 2026]
- Protesters' rights: What they can and can't do under the First Amendment - midmichigannow.com - February 1st, 2026 [February 1st, 2026]
- What the Law Says About the Don Lemon Arrest and the Limits of the First Amendment - EEW Magazine - February 1st, 2026 [February 1st, 2026]
- The First Amendment Will Outlive Trump | Opinion - Out South Florida - February 1st, 2026 [February 1st, 2026]
- NABJ OUTRAGED AT ARRESTS OF DON LEMON, GEORGIA FORT THE FIRST AMENDMENT IS NOT OPTIONAL - Texas Metro News - February 1st, 2026 [February 1st, 2026]
- The Alex Pretti shooting and the growing strain on the First Amendment - FIRE | Foundation for Individual Rights and Expression - January 26th, 2026 [January 26th, 2026]
- Opinion | Jack Smith is in First Amendment denial about trying to gag Trump - The Washington Post - January 26th, 2026 [January 26th, 2026]
- Are you protesting? Here's what to know about your rights to protest under the First Amendment. - tallahassee.com - January 26th, 2026 [January 26th, 2026]
- Anti-ICE protesters disrupted worship in a Minnesota church. Heres why the First Amendment doesnt protect their actions. - FIRE | Foundation for... - January 26th, 2026 [January 26th, 2026]
- CARTOONS: What the First Amendment doesnt protect | Drawing Board | Opinion - reviewjournal.com - January 26th, 2026 [January 26th, 2026]
- OPINION In these crazy times: The First Amendment will outlive Trump - windycitytimes.com - January 26th, 2026 [January 26th, 2026]
- Man Is Shot and Killed During Minneapolis Immigration Crackdown, National Guard Activated - First Amendment Watch - January 26th, 2026 [January 26th, 2026]
- Perspective: When First Amendment rights collide with immigration enforcement - Deseret News - January 20th, 2026 [January 20th, 2026]
- Walking Brain Injury: Conservatives Mock Don Lemon for Claiming First Amendment Right to Storm Church - Mediaite - January 20th, 2026 [January 20th, 2026]
- LETTER FROM THE EDITOR: Using First Amendment rights responsibly... - Columbia Basin Herald - January 20th, 2026 [January 20th, 2026]
- ICE clashes with the First Amendment | Strictly Legal - Cincinnati Enquirer - January 20th, 2026 [January 20th, 2026]
- Ex-NAACP Leader Jim Vincent to Headline Inaugural Bankole Thompson First Amendment Lecture - FrontPageAfrica - January 20th, 2026 [January 20th, 2026]
- Sarasota mayor accused of violating First Amendment by cutting off speakers - yoursun.com - January 20th, 2026 [January 20th, 2026]
- VICTORY: Jury finds Tennessee high school students suspension for sharing memes violated the First Amendment - FIRE | Foundation for Individual Rights... - January 16th, 2026 [January 16th, 2026]
- Opinion | The Post and the First Amendment - The Washington Post - January 16th, 2026 [January 16th, 2026]
- So Much for Free Speech. A Year of Trumps Attacks on the First Amendment - Zeteo | Substack - January 16th, 2026 [January 16th, 2026]
- Houlahan and Bicameral Group Of Democrats Introduce Bill To Protect First Amendment Rights, Safeguard Americans From Politically Motivated Harassment... - January 16th, 2026 [January 16th, 2026]
- Sarasota mayor accused of violating First Amendment by cutting off speakers - Suncoast Searchlight - January 16th, 2026 [January 16th, 2026]
- ACLU and City of Rose Bud reach settlement protecting First Amendment right to petition - thv11.com - January 16th, 2026 [January 16th, 2026]
- First Amendment cases are rising. FSU Law is rising to the occasion - FSView & Florida Flambeau - January 16th, 2026 [January 16th, 2026]
- Press Freedom Advocates Worry That Raid on Washington Post Journalists Home Will Chill Reporting - First Amendment Watch - January 16th, 2026 [January 16th, 2026]
- Guest Column First Amendment and what it means to teen-agers - Pierce County Journal - January 16th, 2026 [January 16th, 2026]
- Democrats Say Trump Administration Is Investigating Them Over Video Message to Troops - First Amendment Watch - January 16th, 2026 [January 16th, 2026]
- Coshocton Schools accused of violating First Amendment after teacher leads prayer - NBC4 WCMH-TV - January 16th, 2026 [January 16th, 2026]
- His SC hometown blocked him on Facebook after critical comment. He filed a First Amendment lawsuit. - Post and Courier - January 16th, 2026 [January 16th, 2026]
- Letters: Americans should not face death for exercising their First Amendment rights - Reporter-Herald - January 16th, 2026 [January 16th, 2026]
- Federal judge rules Creston teacher's first amendment rights were violated - KMAland.com - January 16th, 2026 [January 16th, 2026]
- Press Release: Murphy and Crow Introduce Bill to Safeguard First Amendment Rights and Combat Politically Motivated Harassment - Quiver Quantitative - January 16th, 2026 [January 16th, 2026]
- New Yorks Anti-SLAPP Act: An Unnecessary Chill on the First Amendment Right to Petition - Law.com - January 14th, 2026 [January 14th, 2026]
- Minnesota and the Twin Cities Sue the Federal Government To Stop the Immigration Crackdown - First Amendment Watch - January 14th, 2026 [January 14th, 2026]