Rehabilitating Tinker: A Modest Proposal to Protect Public-School Students’ First Amendment Free-Expression Rights in the Digital Age

41 Pages Posted: 29 Mar 2012 Last revised: 27 Aug 2014

Aaron J. Hersh

University of Iowa - College of Law

Date Written: March 27, 2012

Abstract

The First Amendment provides limited free-expression protections for public-school students, though the Supreme Court precedent on the issue is limited to four cases. None of these opinions enunciate the breadth of students’ free-expression rights for online, off-campus expression. As a result of this shortcoming, multiple circuit courts have reached conflicting conclusions when called on to determine whether schools have violated students’ rights when school administrators punish students for online expression. This inconsistency contributes to confusion — among students, school administrators, and the public at large — that threatens to undermine students’ First Amendment rights. In order to ameliorate this problem, this Note proposes a modified approach that reinvigorates the Tinker v. Des Moines Independent School District standard. This standard would only allow school administrators to regulate off-campus, online student expression that infringes on the rights of other students or otherwise would seriously disrupt the operation of the school in ways that Tinker countenanced.

Keywords: First Amendment, Social Networking, Free Expression, Public School

Suggested Citation

Hersh, Aaron J., Rehabilitating Tinker: A Modest Proposal to Protect Public-School Students’ First Amendment Free-Expression Rights in the Digital Age (March 27, 2012). 98 Iowa L. Rev. 1309 (2013). Available at SSRN: https://ssrn.com/abstract=2029942 or http://dx.doi.org/10.2139/ssrn.2029942

Aaron J. Hersh (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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