How would you determine a verdict in the following case?
The annual Smallville Fair is the community event of the year. Attendance is always high, with community members going to enjoy the thrill rides, the exhibits, and the food, as well as to “see and be seen.” Principal Cuthbert of Smallville High School is there, and as he turns the corner (around the “Guess Your Age or Weight” exhibit,) he is shocked by what he sees. In front of the “Bearded Lady” exhibit is the star Smallville High School quarterback, senior Coy Gunner. Gunner is wearing a green “tee-shirt” depicting a Christ-like figure smoking a marijuana cigarette; in large yellow letters on the front of the shirt are the words “Joints For Jesus.” On the back of the shirt (again, in large yellow letters) is the following: “WWJS: What Would Jesus Smoke?!”
Principal Cuthbert immediately confronts Gunner, exclaiming “Coy Gunner, I cannot believe you would wear such a disgusting shirt. You have offended my Christian principles and beliefs, as well as the religious beliefs of countless numbers of Smallville
citizens attending this fair. Further, you have disgraced Smallville High School. As the star quarterback of our football team, you of all people should know that you are a role model for your fellow students, as well as younger kids in the community. I will see you in my office Monday morning at 7:30 a.m..”
Gunner arrives at Principal Cuthbert’s office on Monday morning to discover that Principle Cuthbert has decided to suspend him for ten school days. Gunner objects, saying “I remember in civics class that Mr. Campbell told us we have the right to free speech. I object to the suspension, and if you don’t change your mind, Principle Cuthbert, my dad knows a good attorney who might want to speak with you.”
How would you determine a verdict in this case?
If I were deciding this case, I would base my decision on two ideas from past cases that were heard by the Supreme Court of the United States and which had to do with free speech.
First, I would need to determine if Gunner was wearing the t-shirt at a school-sponsored event. I would look to Hazelwood v. Kuhlmeier for help on this issue. In that case, the Court ruled that a school could censor speech if reasonable people would believe that the school had given permission for that speech. In that case, the speech in question was an article in a school newspaper. People could very well believe that the school approved of anything said in a school newspaper, but they could not believe that the school had approved a t-shirt being worn by a student away from school. Therefore, I would rule that this case has nothing to do with school and the principal had no reason to get involved.
I would go further and ask if the shirt’s message was protected if worn by a student who was not at school. Here, I would look to Cohen v. California. That case held that a shirt saying “F--- the Draft” (back in the Vietnam Era) was protected speech because it was not a direct insult to any person. The shirt Gunner wore would fall in the same category. Both shirts would offend many people, but neither is a direct personal insult to any individual.
For these reasons, I would find that there was no justification for the government or the school to punish Gunner for wearing the t-shirt.