Tinkering with students' free speech beyond the schoolhouse gate during the digital age.

Author:Brooks, Jeremy M.
  1. INTRODUCTION 141 II. TINKER AND ITS PROGENY 146 III. CIRCUIT COURTS TINKER WITH STUDENT SPEECH IN THE DIGITAL AGE 152 A. The Second Circuit Reasonable Foreseeability Approach 153 B. The Indecisive Third Circuit 157 C. The Ninth Circuit Takes on Free Speech and Guns 159 D. The Chilling Effect 160 IV. CIRCUIT COURTS VS. NEW TECHNOLOGY 161 A. The Second Circuit 162 B. The Third Circuit 163 C. The Ninth Circuit 163 V. A NEW STANDARD TO TINKER 164 VI. CONCLUSION 166 I. INTRODUCTION

    "Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom." (1)

    Gone are the days of sending letters in the mail, using a library to find books rather than just as a place to study, or even simply calling a friend to talk on the phone. With the advent of the computer, smart phones, and social media technology, communication has become virtually instantaneous. Studies show that on social media sites such as Facebook, "the average American has 634 ties in their overall network...." (2) Thus, in a matter of seconds, anyone can write or post a video on Facebook that would be viewable instantaneously by hundreds of people. (3)

    However, as technology continues to advance at an exponential rate, the law, which can hardly be said to evolve at a quick pace, struggles to keep up. (4) One of the countless prevalent issues that the Supreme Court will hopefully opine on in the digital age is to what extent does the First Amendment freedom of speech protect students online expressions via social media sites that enter the schoolhouse gate. (5)

    To illustrate the nature of the cases that require the Supreme Court's attention, juxtapose the following cases: Wynar v. Douglas County School District (6) and Doninger v Niehoff. (7) In Wynar, the plaintiff ("Landon") was a sophomore student in high school who collected weapons as a hobby and would often brag about the quality of his collection to his friends via the internet. (8) One day, however, the tone of Landon's instant messages to his friends via MySpace took a very disturbing turn. (9) He described, in great and quite morbid detail, his plan for a school shooting during which he boasted he could, "get 50+ people and not one bullet would be wasted" just after he referenced the Virginia Tech shooting earlier in the conversation. (10) Landon's friends brought the instant messages to the attention of the school principal." Landon was initially suspended for ten days but soon afterward the school increased the punishment to ninety days. (12)

    Unlike Landon's threatening speech in Wnyar, Avery Doninger's speech in Doninger was not violent, and at first blush, appeared to be a form of political protest. (13) Avery Doninger was a member of the Student Council and had organized a battle of the bands event called "Jamfest". (14) Once the school administrators alerted the Student Council that the event had to be rescheduled, and possibly cancelled entirely as the end of the year approached, Avery decided to persuade the school to reconsider. (15) First, Avery and other students sent out a mass e-mail to students urging them to contact the superintendent, via e-mail and phone, to help save the event. (16) Avery then posted on her blog, a publicly accessible site, stating that the event was cancelled because of the "douchebags" in the school office. (17) Because of the large number of phone calls the principal received, and the language used on the blog, Avery was disqualified from running for Student Council office, and was not permitted to take office when she was voted in via write-in ballots. (18)

    The aforementioned cases create two questions that the Supreme Court should soon address. First, can school administrators punish students for speech expressed, via social media, while not on school campus? The second question, which need only be addressed if the former is answered in the affirmative, is what types of speech can the school punish without violating the students right to freedom of speech pursuant to the First Amendment?

    Both the Ninth and Second Circuit Courts of Appeals have already held that school officials can punish off-campus online speech. (19) As for the second inquiry above, each court respectively held that Landon's threat of a school shooting, or Avery's excessive phone calls coupled with the use of the word "douchebag", do not fall within the scope of the protection of the First Amendment freedom of speech. (20) It is not a great stretch of the imagination to understand that a student's threat on the school will bar them from availing themselves of First Amendment protection, but on the other hand, one should struggle to comprehend how phone complaints and childish language are no different than a threat to people's lives.

    As the court in Wynar pointed out, "[o]ne of the difficulties with the student speech cases is an effort to divine and impose a global standard for a myriad of circumstances involving off-campus speech." (21) In other words, it is very challenging to develop a standard of review that can reasonably tend to cases such as Wynar, but also handle speech like that in the Doninger case, without being overly broad and ultimately meaningless. The lower courts need guidance, but the Supreme Court has yet to address this particular issue concerning online speech. (22)

    Thus far, the relevant Supreme Court precedent that lower courts can use to determine student speech issues is composed of four cases, three of which were decided before social media existed. (23) The first Supreme Court case addressing student speech was Tinker v. Des Moines Independent Community School District. In Tinker, the Court famously stated that "[i]t c[ould] hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (24) As guidance for future free speech cases, the Court created the Tinker standard, which holds that students may express their opinions with the protection of the free speech clause provided they do not, "materially and substantially interfer[e] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others." (25)

    The Tinker standard provides a foundation for determining student speech cases. However, with over seventy percent of teenagers now using at least one social media site, (26) and that number on the rise, the Supreme Court needs to rule on the Tinker standard applicability to online speech to provide much needed guidance to the lower courts; and so that the law can attempt to keep up with the pace of technology.

    This Note examines how the circuit courts determine cases involving online student speech in the absence of a Supreme Court declaration of the law of the land, and outlines a potential approach that the Supreme Court could adopt as well. Part II of this Note highlights the four major Supreme Court cases that have defined the scope of the First Amendment for on-campus speech. Part III evaluates the various approaches adopted by the circuit courts. Part IV attempts to apply the standard from the circuits to more modern scenarios and examine whether these standards can span the test of time. Finally, Part V argues for a novel standard that grants school districts the proper authority to regulate student speech, so long as said speech could bring about harm to other students. Internet speech is distinct from verbal or hand-written speech, thus it deserves its own standard of review. (27) Therefore, this Note concludes by advocating the standard proposed by Justice Stevens in his dissenting opinion, which reads as follows: "the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students." (28)


    The First Amendment to the U.S. Constitution reads that, "Congress shall make no law... abridging the freedom of speech[.]" (29) However, like any other enumerated right in the Constitution, the freedom of speech is not absolute. (30) Therefore, the Supreme Court had to establish the scope of what conduct falls under its protection, and what types of speech may be prohibited.

    For speech involving adults, free speech jurisprudence began with the famous holding in Schenck v. United States that "one cannot falsely shout fire in a crowded theater." (31) In Schneck, the Supreme Court created the "clear and present danger" standard, which allows the government to regulate speech that presents such a danger. (32) That standard lasted for fifty years until the Court, adjudicating the speech of a Ku Klux Klan leader, adopted the "imminent lawless action" test in Brandenburg v. Ohio. (33) Over time, the Supreme Court categorized all types of speech that came before it, assigning each type of speech its own analysis to determine in the future whether that type of speech could be restricted. For example, the government must prove that "threatening speech" constitutes a "true threat" in order to justify regulating it. (34) Determining whether "threatening speech" can be regulated requires a completely different analysis than that required to determine whether a government entity can regulate symbolic speech. (35)

    As expected, determining whether a student's speech is protected requires a different type of analysis than an adult's speech, as the "First Amendment rights of students in the public schools 'are not automatically coextensive with the rights of adults in other settings.'" (36) Student free speech jurisprudence was at its zenith fifty years ago with the Tinker decision, but the three succeeding Supreme Court cases all chipped away at Tinker, effectively limiting a once robust legal precedent. (37)

    In Tinker, the issue was whether school administrators could suspend students for wearing black armbands to school, (38) a symbolic speech...

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