School-Sponsored Speech and the Surprising Case for Viewpoint-Based Regulations

Abstract

Regulation of speech on the basis of the speech's message or viewpoint is especially disfavored in the law. The courts have generally concluded that restricting speech based on anyone's disapproval of the viewpoint or message of the speech "poses the greatest danger to liberty of expression. Thus, it has been said that "the most intense constitutional hostility is reserved for measures that discriminate on the basis of viewpoint. This Article takes no issue with this principle as a general rule. The point of the Article, however, is to illustrate the logic of what should be a crucial exception to this general rule. This exception addresses regulation based on message or viewpoint of what is commonly referred to as school-sponsored speech. School-sponsored speech is speech by anyone that at least reasonably appears to bear the approval or endorsement of public school authorities. Such school-sponsored speech, as in many school newspapers, websites, displays, yearbooks, assemblies, or events, is common.