Digitizing the Schoolhouse Gate: Protecting Students' Off-Campus Cyberspeech by Switching the Safety on Tinker's Trigger
44 Pages Posted: 28 Oct 2018
Date Written: October 5, 2018
Secondary-school students regularly engage in cyberspeech both inside and outside the schoolhouse gate. Internet-era forms of communication allow these students to produce off-campus cyberspeech that can easily be accessed or brought onto campus by other students or faculty. As early as the 1990s, public-school administrations began punishing students for off-campus cyberspeech, accessed or brought onto campus, that the administrations deemed threatening, intimidating, harassing, or generally inappropriate for the school setting. Parents continue to challenge public-school administrations' punishments of their children by filing civil suits in federal courts claiming these administrations violated their children's First Amendment right to free speech. Whether parents' challenges are successful usually turns upon whether the students' off-campus speech causes, or can be reasonably forecasted to cause, a substantial disruption to school administration under Tinker's substantial-disruption test.
This Note addresses the conflict that arises when public-school administrations punish students for off-campus cyberspeech, pitting a student's right to free speech against a school's duty to provide students a safe, nurturing environment. This Note discusses how federal circuit and district courts apply different standards for triggering Tinker's test and explains why the holdings and dicta in Tinker and its progeny cases challenge the application of Tinker's test to off-campus cyberspeech cases. This Note offers a dual proposal that more accurately reflects the Court's school-speech jurisprudence and better protects students' right to free speech. First, federal circuit and district courts should decline to apply Tinker's test to off-campus cyberspeech cases. Tinker and its progeny support greater protections for off-campus speech. At minimum, lower federal courts should use a more stringent standard for triggering Tinker's test. Second, if federal courts continue to apply Tinker's test, then states should enact laws prohibiting school officials from punishing students for off-campus cyberspeech, except when that speech constitutes a true threat to the school community or is adjudicated as unlawful, as in cases of cyberbullying, harassment, or defamation.
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