We recently discussed a controversy over a teacher being told to remove an Antifa flag and Gay Pride flag. We now have the inverse case. A teacher in Washington was told to remove a “Blue Lives Matter” flag that she put up to support her brother who was a former police officer. The flag was surrounded by pictures of her brother. She was told to remove the flag as a “political statement” that would disturb some students. These controversies raise questions of content-based discrimination over speech, particularly after the Washington teacher was reportedly told that she could have Black Lives Matter or Gay Pride flags in her class but not a Blue Lives Matter flag.
A conservative host said that the teacher objected after an assistant principal at the school first took issue with a “Thin Blue Line” sticker on her laptop.
A second assistant principal later ordered the flag to be taken down, and an HR representative reportedly said in a Letter of Clarification that the district was “highly concerned about the impact of this political symbol on students, staff, and families of Marysville Middle School.” She was allegedly told to “refrain from using the ‘Thin Blue Line Flag’ symbol” unless she was willing to face “further disciplinary action.”
What makes this case interesting from a free speech standpoint is that she claims that she was told that she could have BLM flags on the walls. The teacher also had a Gay Pride flag on the wall in support of a gay relative. That was also viewed as acceptable.
The case presents a familiar problem for officials who seek to regulate expressions. It is easier to ban any expressions of political or public causes rather than distinguish between approved and unapproved messages. The government is generally barred from regulating speech
because of its message, its ideas, its subject matter, or its content. Police Dep’t of Chicago v. Mosle, 408 U.S. 92, 95 (1972). Justice Harlan explained this difficult line in Konigsberg v. State Bar of California, 366 U.S. 36, 49–51 (1961):
Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. . . . On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.
In Chaplinsky v. New Hampshire, the Supreme Court followed a “two-tiered approach” that allowed for restrictions in certain defined areas like fighting words and obscenity. 315 U.S. 568, 571-72 (1942). However, these were
well-defined and narrowly limited classes of speech [that] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth. Since Chaplinsky, the Court has largely avoided such exceptions and has held the line against content-based rules limiting free speech.
The key issue here is that this is not just a government space but a school setting where officials have considerable latitude in controlling some forms or symbols of expression. Where schools get into trouble is often in limiting the expression of students themselves, particularly content-based limits. In 1969, the Court famously declared in Tinker v. Des Moines, that students “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, the Court also recognizes the need for officials to maintain a learning environment without disruption or distractions.
Schools, however, can sometimes limit students’ right to free speech and expression when necessary to achieve legitimate educational goals. In Mahanoy Area School District v. B. L. (2021) the Court stated:
Schools have many responsibilities: They must teach basic and advanced skills and information; they must do so for students of different backgrounds and abilities; they must teach students to work independently and in groups; and they must provide a safe environment that promotes learning.
See also Bethel School District v. Fraser (1986); Hazelwood School District v. Kuhlmeier (1988).
If the school did distinguish between flags based on their content, this could present a viable case for challenge. However, a court could well declare that all such flags or displays can be barred by the school district … or all allowed. It is the line drawing that triggers the greatest concern over content-based regulation of speech.