Morse V. Frederick and the Regulation of Student Cyberspeech

Abstract

Morse v. Frederick marked the Supreme Court's first decision addressing the First Amendment rights of public school students in nearly twenty years. In this paper, we analyze the decision in light of the Court's prior decisions since the landmark Tinker case, and speculate on the future of students speech cases. In addition, we look at the impact the decision could have on the new frontier of student First Amendment rights: public school regulation of on-line speech - student "cyberspeech."

Cyberbullying, inappropriate contact between adults and minors, inappropriate (sometimes illegal) activity posted for all to see on social networking sites like MySpace - all have outstripped existing school conduct codes. Since most material is produced off-campus, school officials are unsure how far their authority to regulate it extends. Given the fact that schools are awash in gadgets that permit students to access the Internet, text or e-mail one another, and send pictures and video, moreover, the line between on-campus and off-campus speech is blurring. It is becoming difficult to keep speech out of schools, even if schools (and perhaps the speaker) want to. The reported cases are few and school systems continue to struggle with the issue. Though it did not involve Internet speech, Morse's peculiar facts offered the Court the opportunity to provide some guidance to school officials, and an opportunity for it to clarify the scope both of students' First Amendment rights and school officials' authority to regulate them. Unfortunately, Morse's self-conscious minimalism raised more questions than it answered, especially for student cyberspeech.

Part I briefly reviews prior cases and the questions spawned by those decisions with which lower courts have struggled over the years. Part II summarizes the opinions in Morse and discusses the implications both for the unanswered questions left by the Court's cases, as well as for future speech cases generally. Part III discusses both the challenges to school administrators posed by cyberspeech, as well as lower courts' treatment of these issues in reported cases. Not surprisingly, the court decisions often mirror the confusion present in student speech cases generally. In Part IV we offer some hypothetical situations, consider what is clear after Morse and what remains in question, and propose a standard for resolving the questions to which Morse provided no answers. Our framework respects students' free speech rights while acknowledging the need to preserve a safe and orderly educational environment for students and teachers alike. A brief conclusion follows.

Keywords: Morse, Frederick, First Amendment, public student, Tinker, Kuhlmeier, Poway, Fraser, MySpace, Facebook, cyberspeech, student speech

JEL Classification: O1