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Cyberspace is Outside the Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection


Joseph A. Tomain


Florida Coastal School of Law, Assistant Professor

March 3, 2010

Drake Law Review, Vol. 59, p. 97, 2010

Abstract:     
Normative and doctrinal analysis shows that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus. The Third Circuit vacated both decisions and is considering these cases in a consolidated en banc appeal. Another case addressing the same issue is currently pending before the Second Circuit. This article provides in-depth analysis on all three cases as well as associated case law.

Specifically, the article focuses on one of the four Supreme Court student speech rulings, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). In Fraser, the court held that a school may discipline a student for giving a lewd and indecent speech at a mandatory school assembly. Fraser created an exception to the Court’s seminal student speech case, Tinker v. Des Moines Area School District, 393 U.S. 503 (1969). Tinker required a substantial disruption of the school environment before a school could punish student speech. Fraser did not require a substantial disruption because the student gave a speech filled sexual innuendo before a captive school audience.

Lower courts struggle with whether Fraser applies to offensive online speech. On February 4, 2010, one Third Circuit panel affirmed the district court by holding that Fraser does not apply to online speech. On the same day, a different Third Circuit panel declined to analyze Fraser, even though the district court upheld a school’s decision to discipline a student under Fraser. Instead, that Third Circuit panel upheld the punishment under Tinker. While not creating an express intra-circuit split, these decisions do not resolve the uncertainty as to whether Fraser applies to online student speech. The case pending before the Second Circuit will address Fraser because the certified question is whether “a school may discipline a student for inappropriate comments made off campus on a blog.”

The rule articulated in this article is that Fraser does not apply to offensive online student speech, regardless of whether it is created or accessed on or off-campus. This rule is supported by doctrinal analysis of Fraser and its progeny.

Normative analysis under self-realization theory also supports the rule in this article. Self-realization theory is influential in our Supreme Court’s First Amendment jurisprudence and was most recently invoked in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 972 (Jan. 21, 2010) (Stevens, J., dissenting). Because of conflicting lower court decisions, the issue of online student speech rights will likely reach the United States Supreme Court. Through normative and doctrinal analysis, this article illustrates the importance of limiting school jurisdiction over online student speech to protect First Amendment rights of minors and others.

Number of Pages in PDF File: 84

Keywords: First Amendment, Free Speech, Student Speech, Cyberspace, Cyberlaw

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Date posted: May 3, 2010 ; Last revised: January 30, 2011

Suggested Citation

Tomain, Joseph A., Cyberspace is Outside the Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection (March 3, 2010). Drake Law Review, Vol. 59, p. 97, 2010. Available at SSRN: http://ssrn.com/abstract=1597338

Contact Information

Joseph A. Tomain (Contact Author)
Florida Coastal School of Law, Assistant Professor ( email )
8787 Baypine Rd.
Jacksonville, FL 32256
United States
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