Freedom of Speech in School and Prison

By Caplan, Aaron H. | Washington Law Review, February 2010 | Go to article overview

Freedom of Speech in School and Prison


Caplan, Aaron H., Washington Law Review


Abstract: Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro level, however, there are subtle but significant differences between the two. These arise primarily from the judiciary's belief that differences exist between the purposes of schools and prisons - although, somewhat ominously, the differences appear even more subtle when comparing schools to jails. Just as judicial beliefs about social reality affect constitutional outcomes, the constitutional rules is turn affect social reality. Courts should be wary of language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy.

INTRODUCTION

It is the rare public school student who has not at least once complained that her school is like a prison, with the principal as warden and the teachers as guards. The trope of school-as-prison appears regularly in popular culture, most often voiced in a tone of rueful irony. For example, in an obituary for actor Patrick McGoohan, a critic wrote that McGoohan' s 1968 production The Prisoner was "the most important television series of my life" because "I was just then working out that my own junior high school was a kind of jail."1 Andy Singer's cartoon succeeds as satire because most people believe that school is not supposed to be like prison. Figure 1. School is supposed to be a site of uplift and optimism, providing students with the mental and social tools to thrive as free citizens. Prison, by contrast, is the antithesis of freedom, a place to quarantine a deviant population for whom our best efforts at education, uplift, and optimism have failed. With these expectations, identifying similarities between the two institutions amounts to an implicit call for change.

By contrast, judicial opinions about freedom of speech compare schools and prisons without irony, and indeed without hesitation. Courts litter their decisions about prisoner speech with citations to decisions about student speech and vice versa. Many judges treat the analogy as if it were innately persuasive, requiring no special justification or explanation.

Michel Foucault would say the judges are onto something. In Discipline and Punish, Foucault traced the historical progression from medieval forms of punishment that exacted retribution on the body of the accused (think torture or public execution) to the modern practice of incarceration.2 The shift was not, Foucault argued, evidence of evolving standards of decency. Rather, a well-developed prison system could simply be a more effective deterrent to wrongdoing by inculcating in prisoners the mental habits of discipline and subservience. Internalizing discipline in young minds is also, he believed, the essential function of the public school. Hence, it is no accident that the prison resembles the school, even down to its architecture: "Is it surprising," Foucault asked, "that prisons resemble factories, schools, barracks, hospitals, which all resemble prisons?"3

This Article explores the analogy between school and prison in constitutional free speech cases. Is the analogy best understood as a mordant punch line or as evidence that the two institutions share a joint mission? In answering this question, I draw on a body of recent First Amendment scholarship debating the degree to which speech rules should operate differently within government-run institutions than they do in society at large.4 The literature often addresses the trio of schools, prisons, and military bases together as prototypical institutions where speakers enjoy less constitutional protection. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Freedom of Speech in School and Prison
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.