Poison pens, intimidating icons, and worrisome websites: off-campus student speech that challenges both campus safety and First Amendment jurisprudence.

Author:Garcia, Kathy Luttrell
  1. Introduction II. Tinker & Its Progeny: First Amendment School Speech Overview III. Threatening Expression: The School Environment is no Place for this Type of Speech IV. Off-Campus Speech, On-Campus Harm A. Why Schools are Best Situated to Address these Harms B. Dark Poetry, Black Comedy, or Threats Directed Toward the School or Students? C. Threats Directed Toward a School or its Students Should be Categorically Unprotected under Morse v. Frederick V. Conclusion I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I'm BACK!! (2)


    As the line between off-campus and on-campus student speech is increasingly blurred by the internet, educators and courts alike are struggling to determine the limits of school authority to restrict student speech that originates off-campus but is directed toward an on-campus audience. (3) Although students retain their First-Amendment-protected rights of free speech and expression on school campuses during school hours, (4) these rights are subject to exceptions. (5) These exceptions are constitutionally permissible, even where the speech could not be restricted off campus, because "student First Amendment rights are 'applied in light of the special characteristics of the school environment."' (6) Because of these characteristics, and the school's interest in protecting the safety of its students, off-campus student speech that is directed toward or would foreseeably reach an on-campus audience and could be reasonably interpreted as threatening the school or any of its constituents should not be protected from school restriction or discipline.

    The Supreme Court has yet to be confronted with such a case, and the lower courts seem divided as to the reach of school authority to restrict such speech. (7) The disagreement is based upon the tension between the value in protecting the robust exchange of ideas in the school environment, (8) the need to maintain an optimal learning environment, (9) and a very natural concern for school discipline and safety. (10) The tension is especially pronounced in light of several well-publicized and tragic school shootings and the growing problem of cyber-bullying. (11)

    The Supreme Court has repeatedly acknowledged these competing concerns, beginning in 1969 with its decision in the seminal case of Tinker v. Des Moines Independent School District. (12) There, the Court upheld the right of students to engage in a silent, passive protest, as long as it did not cause a material or substantial disruption to school activities. (13) The Court explained that "[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (14)

    Since Tinker, the Court has recognized several categorical exceptions to the protection of student speech. Under these exceptions, school administrators may restrict student speech that occurs on campus when it materially and substantially interferes with school order and discipline; (15) is lewd, indecent, or offensive; (16) is sponsored by the school itself; (17) or could be reasonably interpreted as promoting the use of illegal drugs. (18) The most recent Supreme Court opinion in this line of cases, Morse v. Frederick, explicitly acknowledged the Court's categorical approach and lends support to the recognition of additional exceptions. (19)

    This article will explain the need for one such exception, that of threatening speech even if it falls short of the requirements for prosecution as a true threat. (20) Part II will explain the Supreme Court's jurisprudence in the area of student speech. (21) Part III will explain why threatening expression has no place in the school environment even where the expression could not be criminally sanctioned, and is particularly problematic in light of recent school shootings and the growing problem of cyber-bullying. (22) Part IV will explain why schools must be permitted to discipline students who direct off-campus threatening expression toward the school or who could reasonably foresee that the expression would come to the attention of school authorities, why existing law is insufficient to offer clear guidance to students or school administrators, and why Morse permits the categorical exclusion of this type of speech from First Amendment protection. (23)


    In Tinker, a group of students planned to protest the Vietnam War by wearing black armbands to school. (24) Upon learning of the plan, school administrators adopted a policy of asking participating students to remove their armbands and suspending any student who refused to comply. (25) Students were aware of the policy, yet several students subsequently wore the armbands to school. (26) Accordingly, when asked to remove the armbands, these students refused and were suspended. (27) The Tinker Court determined that the suspensions had violated the students' right to engage in a "silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of [the students]." (28)

    Explaining that the armbands symbolically expressed opposition to the Vietnam War, (29) the Court characterized this expression as "closely akin to 'pure speech'" that was entitled to comprehensive First Amendment protection. (30) The Tinker Court reasoned that "[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," (31) subject to the need to maintain discipline in the schools. (32) Since the record reflected no evidence of any actual or potential disruption to the school environment, (33) and since similar symbolic expressions of opinion had not been prohibited, the students were entitled to engage in this expression. (34) Accordingly, the Court held that schools are not permitted to restrict or discipline student speech unless it would "materially and substantially interfer[e] with the requirements of appropriate discipline in the operation of the school [or] ... collid[e] with the rights of others." (35)

    Lewd, indecent, or offensive speech receives no such protection, however, as the Court made clear in Bethel School District No. 403 v. Fraser. (36) In Fraser, a high school student made a sexually suggestive speech nominating a friend for student-government office during an on-campus assembly. (37) Students at the assembly responded by hooting, yelling, and making graphic gestures, or by apparent bewilderment or embarrassment. (38) In one class the next day, it became necessary to forgo part of the scheduled lesson in order to discuss the speech. (39) Although the speech arguably caused at least some disruption, the Fraser Court did not rest its decision on this basis. (40)

    Instead, the Fraser Court explained that indecent, lewd, and vulgar speech is of slight social value, which is "outweighed by the social interest in order and morality." (41) Moreover, even if such speech were generally protected outside the school setting, "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." (42) Considering the reduced constitutional rights of students and the school's role in advancing "society's countervailing interest in teaching students the boundaries of socially appropriate behavior," (43) the Court explained that such speech has "no place" being uttered in a high school assembly. (44) In doing so, the Court explicitly and repeatedly distinguished the political viewpoint silently expressed by the students who wore armbands in Tinker from the speech in Fraser, which was not an expression of a political viewpoint and generated discipline not for any viewpoint but rather because it was, "offensively lewd and indecent." (45) Thus, the school was entitled to restrict speech that would otherwise "undermine the school's basic educational mission." (46)

    Similarly, school-sponsored speech may "undermine the school's basic educational mission" by failing to meet educational standards, being inappropriate for the student audience's level of maturity, or creating the potential for misattribution to the school. (47) In Hazelwood School District v. Kuhlmeier, a high school principal deleted two pages of a student "newspaper produced as part of the school's journalism curriculum." (48) The contents of the two pages included two articles that concerned the principal: one about student pregnancy that did not seem to adequately protect the anonymity of its subjects or the privacy of their parents or boyfriends, the other about divorce that disparaged at least one parent without having offered any opportunity to respond. (49) The principal's concern was shared by both of the faculty members who served as advisors to the student newspaper that year, and was supported by an expert witness. (50) Although the two pages also included unobjectionable material, the principal believed that, in the circumstances, the publication schedule precluded any response other than deleting both pages entirely. (51) After first reiterating the Tinker standard and holding that the school had not created a public forum in the newspaper, (52) the Court upheld the school's restriction. (53)

    The Court explicitly categorized its school-speech cases into three distinct categories, each having its own analytical framework: (1) personal student speech that happens to occur on campus, exemplified by the armbands in Tinker; (2) lewd, vulgar, or offensive speech; and (3) school-sponsored speech. (54) According to the Court, schools have greater authority to restrict the second two categories, (55) because schools are entitled to disassociate themselves from speech the relevant school boards deem "inconsistent with the 'fundamental values' of public school...

To continue reading