Unsettled Questions in Student Speech Law

Abstract

More than fifty years ago, the U.S. Supreme Court famously proclaimed in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In subsequent decades, the Supreme Court reduced the level of free-speech protections for public school students, but Tinker is still the lodestar decision.

There remain several areas of uncertainty regarding the scope of student (K–12) First Amendment rights. This Article addresses three of those main areas: (1) whether a student’s speech can be limited by the unruly behavior of listeners; (2) when student speech invades or infringes on the rights of other students; and (3) when school officials can punish students for off-campus, online speech. All three areas have led to much disagreement and uncertainly among courts, school officials, parents, and commentators.

Keywords: Student Speech Law, First Amendment, Tinker v. Des Moines Independent Community School District,