More connection, less protection? Off-campus speech with on-campus impact.

• Author: Ellison, Benjamin L.

INTRODUCTION

The same scenarios come up time and time again in student free speech cases. A student spreads rumors about fellow students on his own website. School authorities find out about the website and intervene. (1) A group of students publishes an "underground" newspaper and distributes it on campus. School authorities see the newspaper and suspend the student. (2) A student creates a website threatening or mocking the school principal. Word spreads, the principal finds out, and he suspends the student. (3) A student writes a disturbing poem. It makes its way to school and authorities suspend the student for fear of violence. (4) Sometimes courts uphold the suspensions. Other times, courts hold that schools have impermissibly trampled on student free speech rights.

The cases all involve student speech that originates off campus, but then finds its way to campus either through technology, word of mouth, or a third party. While the Supreme Court has set out relatively clear guidelines to govern student free speech on public school campuses, uncertainty about that precedent's applicability to these scenarios has caused confusion.

School administrators are caught in the middle. (5) They are charged with ensuring order and discipline, inculcating values, and protecting the safety and welfare of children. Yet, schools must also refrain from infringing on the free speech rights of students--rights that the students famously do not shed at the schoolhouse gate. (6) As if that task were not difficult enough already, the rapid change of technology that allows students to communicate instantly, on and off campus, has compounded the problem. The rapid change in communication technology did not simply plateau with the advent of the Internet and email. Rather, in recent years the forms of electronic communication have multiplied, with instant messaging, text messaging, MySpace, Facebook, blogs, YouTube, Twitter, and many more technologies. (7) These allow students to reach each other more and more. They also multiply the number of ways that students can bully, harass, taunt, and slander each other. (8) Cyberbullying--bullying through websites, email, and other forms of electronic communication--has become a widespread problem, with as many as seventy-five percent of teenage students reporting having been bullied online. (9) Teachers and administrators have become targets as well. (10) While some of these forms of student expression may originate off campus, they can eventually have a great impact on the campus environment, sometimes without ever being accessed from school. The disruption caused by such students can wreak havoc on individuals at school (11) and the entire school environment, as though the words were uttered in the classroom. Yet schools are commanded to deal with such disruptive students in an appropriate way, even when those students decline to act appropriately themselves.

On the other hand, school administrators have been known to overreach and overreact to squelch undesirable student speech, often infringing on student free speech rights. (12) In a post-Columbine world, schools are especially sensitive to possible threats to student safety. (13) While the Internet may offer students a new outlet for expression, with the potential to reach wide audiences, it is also a place where school administrators may seek out and punish what they find to be inappropriate behavior. In the 1960s, overreaching by administrators was a threat to student expression via "underground newspapers." (14) Now it has become a threat to all student expression via electronic media. (15)

When students are outside of school, they are normally governed by the general laws that govern citizens of all ages. (16) This includes speech. When students choose to express themselves in school, however, their rights are slightly circumscribed, governed by the familiar Supreme Court trilogy of Tinker v. Des Moines Independent Community School District, (17) Bethel School District No. 403 v. Fraser, (18) and Hazelwood School District v. Kuhlmeier, (19) as well as the newest addition, Morse v. Frederick. (20) These cases establish that a student's constitutional right to freedom of expression gives way to the school's interests in education, order, and discipline if the expression is substantially disruptive, plainly offensive, perceived to be school sponsored expression, or understood to advocate illegal drug use.

It is an open question, though, as to what protections this type of student speech--speech of off-campus origin that reaches campus somehow--should receive. The student speech trilogy only addresses student speech that takes place squarely within the school environment. (21) Thus, the Supreme Court has not directly addressed the question of what protections the Constitution gives to student speech that originates off campus but eventually reaches campus or has an impact there.

Commentators almost universally decry the disarray in the lower courts on this issue. Indeed, there is some confusion. All seem to agree that there is some room for schools to discipline students for speech that originates off campus when there is a sufficient connection to the school campus. But what constitutes a sufficient connection? Is it enough if the student speaker directs his speech to campus in some way? If he reasonably should have known that his speech would reach campus? If a third party brings the speech to campus?

Commentators are divided into two camps on the issue: one, concerned with overzealous school officials violating student free speech rights; the other, concerned with the epidemic of cyberbullying. The cases involve compelling stories that fuel the fires of both camps. (22) In light of the disarray in lower courts, commentators have also suggested various tests to deal with the issue, ranging from the simple, to the intuitive, to the exotic.

This Note attempts to resolve this issue of off-campus speech protection in public schools. Part I looks at the Supreme Court's student speech cases. Part II surveys how the lower courts have handled school regulation of off-campus student speech. Results and methodology differ. Part III examines and critiques various proposed tests for how to treat off-campus student speech. It then suggests a test in which protected off-campus speech would only be subject to school discipline if the speaker intends for the speech to reach campus, and the speech actually does reach campus, with some exceptions.

1. STUDENT SPEECH PROTECTIONS

   Speech, in general, is divided into two categories: protected and unprotected. Protected speech receives full First Amendment protection. (23) Unprotected speech includes certain categories that governments can regulate, free from the normal restraints. Such categories include fighting words, (24) true threats, (25) incitement, (26) and obscenity. (27) Such speech is unprotected because courts have deemed it to be without value, not advancing political discussion, unnecessary in form to communicate ideas, or a combination of these. (28) Unprotected speech is punishable by schools on campus, just as it is subject to punishment in the rest of the world. The line of Supreme Court cases addressing student speech--Tinker and its progeny--apply to the realm of otherwise protected speech in the school context. This Note will refer to the types of speech identified by the Tinker line of cases that receive less protection in the school environment as "less-protected speech."

   1. Tinker

      The student speech trilogy begins in the 1960s with Tinker v. Des Moines Independent Community School District. (29) A group of high school and middle school students chose to wear black armbands to school to protest the Vietnam War. (30) School authorities had learned about the plan earlier and enacted a policy banning all armbands from school under pain of suspension. (31) The students wore the armbands anyway and the school suspended them under the policy. (32) The students brought a civil action against the school authorities for violating their First Amendment rights. (33) The district court upheld the authorities' actions as reasonable in order to prevent disturbance of school discipline. (34) The Eighth Circuit, hearing the case en banc, was evenly divided and thus affirmed the lower court's decision without opinion. (35)

      The Supreme Court began by explaining, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (36) Nonetheless, "the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." (37) Unlike previous cases involving disruptive demonstrations or dress codes regulating hair length, the Court characterized the present case as involving "pure speech." (38)

      Accordingly, the Court pronounced the rule regarding the regulation of speech on school campuses:

      In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained. (39) The school could not rely on "undifferentiated fear or apprehension of disturbance" to justify its actions. (40) Nor could school officials suppress speech simply because they disagreed with the message. (41) Later in the opinion, the Court indicated that actual "material and substantial interference" was not required...