Triggering Tinker: Student Speech in the Age of Cyberharassment
34 Pages Posted: 14 Jun 2016 Last revised: 7 Apr 2017
Date Written: February 14, 2017
This essay challenges the common assumption that public schools have limited authority to regulate cyberbullying that originates and takes place off campus. That argument presumes a level of myopia, clarity, and literalism in the law that simply does not exist. First, even assuming it existed, a geographic requirement is an outdated creature of a preinternet age. Cyberbullying poses unique challenges to young people, educators, and schools not contemplated when the Court decided its student speech cases. If it existed then, it should adapt to today’s realities. Second, I argue that a campus presence requirement for regulating any kind of off-campus cyberspeech never really existed, so any suggestion to the contrary offers false clarity based entirely on dicta or assumptions. And third, to the extent that the Court referred to the geographic boundaries of a school in its quartet of student speech cases, the justices’ words cannot be taken too literally. Like references to the four walls of the office in public employee speech cases, a campus presence requirement is just a proxy for or a paradigmatic example of applying a broader, more flexible standard focused on relationships: between the victim and her harasser and between them and the school.
Keywords: Tinker, Student Speech, Cyberharassment, Cyberbullying, First Amendment
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