One area where free speech is under significant attack is within this country's school
system, where perhaps the most vulnerable class of individuals in this country —
children — are under the threat of criminal prosecution and incarceration merely for
vague speech that the Founding Fathers would have not considered problematic.
Specifically; Kentucky Revised Statute 161.190 criminalizes free speech in the
following way:

Whenever a teacher, classified employee, or school administrator is

functioning in his capacity as an employee of a board of education of a

public school system, it shall be unlawful for any person to direct speech

or conduct toward the teacher, classified employee, or school |

administrator when such person knows or should know that the speech

or conduct will disrupt or interfere with normal school activities or will

nullify or undermine the good order and discipline of the school.
In an era when being offended is traded as social capital, this statute leaves a speaker
within a school, often children, vulnerable to criminal punishment for speech that is
ordinarily protected and to conviction and punishment because of how hearers react
to the speech.
This means two people could say the exact same thing to a teacher, with it being
permissible for one and criminal for the other, solely because of how that teacher who
heard the speech reacted. This means the speaker must guess what speech will lead
to their imprisonment based on the possible reaction any person at a school could
theoretically have when the person hears the speech.
The chilling effect of this statute poses a clear danger to speaker's First Amendment
rights and inhibits discussion of difficult topics in school for fear that the speech
might cause a reaction that undermines the "good order and discipline", and could
lead to the speaker spending three hundred and sixty five days in a county jail. It
inhibits students and parent's rights to speak to what they believe for fear that the
reaction to their belief might subject them to criminal conviction and imprisonment.
Just about any speech could result in incarceration because it is impossible to predict
in this day and age what speech might "undermine good order and discipline." Simply,
under the statute, no speech is clearly safe, thereby eviscerating the First
Amendment within the school systems, which is something the Founding Fathers
could not have anticipated and certainly would not have wanted to be the intended
consequences of the First Amendment.
Statutes like the one at issue here will continue to arise unless this Court resolves

. the significant issues at hand, and the First Amendment, as it relates to schools, will
be severely undermined without the Court's intervention.
i

The questions presented are:

1. Does criminalizing the content of free speech based solely on how a person

. who heard the content reacted, or interpreted the content, violate this
, Court's established First Amendment jurisprudence in Coates v. City of
Cincinnati, 402 U.S. 611, 614 (1971) and Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503 (1969), which hold that school students still possess

free speech rights and that those rights cannot be governed by the yard

stick of vague annoyance? .

2. Does it violate the First Amendment to criminalize free speech if the
content of the speech causes consternation that disrupts the "good order
and discipline" of a school?

3. Even if speech that disrupts "good order and discipline" could be
criminalized, is a statute that criminalizes speech if the speaker knew, or
should have known, the

Does criminalizing the content of free speech based solely on how a person who heard the content reacted, or interpreted the content, violate this Court's established First Amendment jurisprudence?