Rehabilitating Tinker: A Modest Proposal To Protect Public-School Students' First Amendment Free Expression Rights in the Digital Age

• Author: Aaron J. Hersh
• Position: J.D. Candidate, The University of Iowa College of Law, 2013
• Pages: 1309-1349

1309

Rehabilitating Tinker : A Modest Proposal

To Protect Public-School Students’ First

Amendment Free Expression Rights in the

Digital Age

Aaron J. Hersh

ABSTRACT: The First Amendment provides certain free expressi on

protections for public-school students, though the Supreme Court precedent

on the issue is limited to four cases. None of these opinions enunciate the

breadth of students’ free expression rights for online, off-campus expression.

As a result of this shortcoming, multiple circuit courts have reached

conflicting conclusions when called on to determine whether schools have

violated students’ rights when school administrators punish students for

online expression. This inconsistency contributes to confusion—among

students, school administrators, and the public at large—th at threatens to

undermine students’ First Amendment rights. In order to ameliorate this

problem, this Note proposes a modified approach that reinvigorates the

Tinker v. Des Moines Independent Community School District

standard. This standard would allow school administrators to regulate off-

campus, online student expression only when it infringes on the rights of

other students or otherwise would seriously disrupt the operation of the

school in ways that Tinker countenanced.

I. INTRODUCTION .................................................................................... 1311

II. STUDENTS’ FIRST AMENDMENT FREE EXPRESSION RIGHTS AND THE

FEDERAL COURTS ................................................................................. 1314

A. PUBLIC-POLICY CONCERNS: THE CHALLENGES FACING SCHOOLS

AND STUDENTS’ FREE EXPRESSION INTERESTS .................................. 1315

B. AN EXERCISE IN AMBIGUITY: THE SUPREME COURT’S STUDENT-

EXPRESSION PRECEDENT ................................................................. 1318

 J.D. Candidate, The University of Iowa College of Law, 2013; B.A., Lewis & Clark

College, 2008. I would like to thank the members of the Iowa Law Review for their efforts to

improve this Note, Professor Todd Lochner for his inspiration, and my family for its continued

support.

1310 IOWA LAW REVIEW [Vol. 98:1309

1. The High Point of Student-Expression Protection:

Tinker v. Des Moines Independent Community School District .. 1319

2. The Degradation of Tinker ................................................... 1321

a. Bethel School District No. 403 v. Fraser: Vulgarity

and Lewdness as Exceptions to Protected Student

Expression ........................................................................ 1321

b. Morse v. Frederick: Advocacy of Illegal Drug Use as a

Further Exception .............................................................. 1323

C. THE CIRCUIT COURTS ADDRESS STUDENTS’ ONLINE EXPRESSION ...... 1326

1. Doninger v. Niehoff : The Second Circuit’s Misguided

Application of Tinker and Fraser .......................................... 1327

2. Kowalski v. Berkeley County Schools : The Fourth Circuit’s

Application of Tinker to Cyberbullying and the

Lingering Presence of Fraser ................................................ 1331

3. Layshock ex rel. Layshock v. Hermitage School District and J.S.

ex rel. Snyder v. Blue Mountain School District : The Third

Circuit’s Mostly Correct Application of Tinker ................... 1334

III. AMBIGUITY’S DUAL DIFFICULTY: CHILLING EXPRESSION AND

ELIMINATING GUIDANCE TO SCHOOL OFFICIALS ................................ 1338

A. THE CHILLING EFFECT ................................................................... 1338

B. THE LACK OF GUIDANCE TO SCHOOL OFFICIALS ............................... 1340

IV. A NEW WAY FORWARD: ACHIEVING HARMONY BETWEEN STUDENT

EXPRESSION AND EFFECTIVE PUBLIC-SCHOOL ADMINISTRATION ........ 1341

A. LIMITING FRASER .......................................................................... 1341

B. REHABILITATING TINKER ............................................................... 1342

1. Expression Meant To Bully and Harass Students .............. 1345

2. Expression Meant To Protest School Policy ....................... 1346

3. Expression Meant To Mock School Officials ..................... 1347

V. CONCLUSION ....................................................................................... 1349

2013] REHABILITATING TINKER 1311

I. INTRODUCTION

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

behavior.4

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-