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A particular form of harassment or intimidation can be regulated only if the speech at issue gives rise to a well-founded fear of disruption or interference with the rights of others.
The plaintiffs, two students at Neuqua Valley High School, a large public high school in Naperville, Illinois, had sued the school district (and school officials, whom we can ignore—we'll call the defendants, collectively, "the school") for infringing their right of free speech by forbidding them to make a specific negative statement about homosexuality. They moved for a preliminary injunction, which the district judge denied. The students appealed.
May the school forbid the students from making specific negative statements about homosexuality absent proof that the same would provoke a substantial disruption?
The court determined that it was speculative to conclude that allowing the students to wear T-shirts that said "Be Happy, Not Gay" would have even a slight tendency to provoke a substantial disruption, or to poison the educational atmosphere; such speculation was too thin a reed on which to hang a prohibition of the exercise of the students' free speech. The injunctive relief was not moot (even though plaintiff students were no longer at the school) because the injunction ran in favor of any student at the high school, and Fed. R. Civ. P. 71 authorized nonparties to seek enforcement of an injunction that granted relief for a nonparty or could be enforced against a nonparty. Finally, the monetary award was justified because both students were injured by the school's violation of their constitutional rights (one student's shirt was defaced and the other student's desire to wear the T-shirt on multiple occasions in 2007 was thwarted by fear of punishment).