2013] REHABILITATING TINKER 1311
While the First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech,”1 this prohibition is not absolute.
The Supreme Court has held that the First Amendment offers only limited
protections to students’ expression within the confines of public schools.2
This principle of limited protections, and the doctrinal rules that embody it,
are vague and difficult to apply;3 this is particularly true in the social-media
age, in which Facebook, Twitter, and blogs allow students to broadcast their
opinions immediately from their computers and phones. The Internet now
serves as a medium for students to air their grievances, mock their teachers
and administrators, or gossip with other students. Social media has also
enlarged the bully’s toolbox, frustrating schools’ efforts to curb such
This modern environment has changed the face of public education
and has forced school administrators and teachers to confront problems
uncommon or unheard of in past decades. In fact, student-expression cases
are litigated more frequently than almost all other areas of free expression
law.5 Some estimates suggest that student-expression cases have been
litigated at least 600 times in the lower courts since the Supreme Court
decided Tinker v. Des Moines Independent Community School District, the
watershed student-expression case, in 1969.6 Yet existing Supreme Court
1. U.S. CONST. amend. I.
2. See infra Part II.B.
3. See infra Part II.C.
4. See infra Part II.A.
5. Frederick Schauer, Abandoning the Guidance Function: Morse v. Frederick, 2007 SUP.
CT. REV. 205, 208 (“[C]ases involving speech in the schools are overwhelmingly more common
in the state and federal inferior courts than are cases dealing with obscenity, indecency,
incitement to or advocacy of unlawful activity, defamation, commercial advertising, campaign
finance, and any of a host of other First Amendment subjects . . . .”).
6. Id. at 225. Yet this number cannot account for all incidents in which school
administrators discipline students for their expression because varying levels of punishments
and the costs of litigation might disincentivize potential plaintiffs from bringing suits. See id. at
225–26. Moreover, the frequency with which the Supreme Court’s landmark cases have been
cited also suggests that this issue is litigated often. For example, according to a Westlaw search
on November 5, 2012, state and federal courts have cited Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969), 2030 times; Bethel School District No. 403 v. Fraser,
478 U.S. 675 (1986), 471 times; Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), 565
times; and Morse v. Frederick, 551 U.S. 393 (2007), 207 times. These statistics do not account for
the times students and their families bring suits but ultimately settle or when the parties resolve
the dispute before students or their parents pursue legal recourse. Many of these cases,
however, do not relate to online or off-campus expression but rather deal with more traditional
forms of on-campus expression, such as clothing that communicates se xual innuendos or
inflammatory messages. See Maryclaire Dale, ACLU Sues School over “I Love Boobies” Bracelet Ban,
HUFFINGTON POST (Nov. 15, 2010), http://www.huffingtonpost.com/2010/11/15/aclu-sues-
school-over-i-l_n_783547.html; Carrie Gann, Cheerleaders Chastised for “Inappropriate” Breast
Cancer T-Shirts, ABC NEWS (Oct. 14, 2011, 1:44 PM), http://gma.yahoo.com/blogs/abc-