Illustration: Chris Sharp

In the last 40 years, the Supreme Court has decided only four cases involving the free-speech rights of public school students, none of which addressed digital communication. This hasn’t helped the lower courts, which, in recent years, have been bombarded with student challenges to school punishments for content found on blogs or personal websites, in e-mails or text messages. In the December 2008 issue of the Florida Law Review, Mary-Rose Papandrea, an assistant professor of law, considers the lower courts’ efforts to resolve issues of student speech in the digital age, absent Supreme Court guidance.

The Supreme Court has never supported limits on juvenile speech per se, writes Papandrea. Minors have the same constitutional right as adults to express themselves in the public square. But regarding speech in public schools, the Court has, over the years, increasingly deferred to the judgment of educators. The first of the four cases alluded to above—and the last to strongly protect speech rights for students, in Papandrea’s opinion—was Tinker v. Des Moines Independent Community School District (1969). Declaring that schools cannot be “enclaves of totalitarianism,” the Court ruled that 15-year-old John Tinker could wear a black armband to high school to protest the Vietnam War. But in siding with the teenager, the justices framed two standards: Schools may restrict student speech that causes “material and substantial interference with schoolwork or discipline” (which, the Court decided, the armband did not) or “invasion of the rights of others.” These exceptions are called the two “prongs” of Tinker, and the first prong—invoked most often—is known as the Tinker test.

In two subsequent cases—one in 1986 involving a high school student’s lewd speech at a school assembly (Bethel School District No. 403 v. Fraser), and another in 1988 involving an article about student pregnancy in a school-sponsored student newspaper (Hazelwood School District v. Kuhlmeier)—the Supreme Court went further. “The education of the Nation’s youth,” the majority affirmed in Hazelwood, “is primarily the responsibility of parents, teachers, and state and local officials, and not of federal judges.”

Digital speech poses a new challenge for judges, says Papandrea, because it is “uniquely pervasive”—its content can target students, faculty, or administrators, but the message can originate off-campus and be received by anyone, anywhere. In 2007, she says, the Court “missed an opportunity” to address this “territorial” issue when it decided Morse v. Frederick, a case involving a student who displayed the banner “BONG HiTS 4 JESUS” on a public sidewalk at a parade near his school. Noting that attendance was school-supervised, the Court chose to keep to its emphasis on the “special characteristics” of the education mission, deferring to the school much as it does to prisons and the military, says Papandrea.

Meanwhile, lower courts have been “all over the map” in adjudicating digital speech cases, Papandrea writes, sometimes siding with school boards, sometimes not. In 2001, a Pennsylvania district court rejected a school’s attempt to punish a student’s profane e-mail, because, the court wrote, the expression “occurred within the confines of [the student]’s home, far removed from any school premises or facilities.” And in 2007, the Second Circuit Court found that a New York eighth-grader’s instant message (sent from his parents’ computer to 15 friends and then circulated) met Tinker’s material-and-substantial-
interference test because there was a “reasonably foreseeable risk that [the speech] would come to the attention of school authorities” and also because a school administrator spent time investigating it and the teacher targeted in the communication refused to teach the student again.

Papandrea believes the Supreme Court may be headed toward allowing schools to punish digital speech. And yet, she says, much speech that educators consider punishable—mocking teachers, ridiculing other students—“is not new conduct”; it’s just that now, thanks to the Internet, school boards are privy to it. “Permitting school officials broad authority to punish student speech whenever it comes to their attention,” writes Papandrea, “would grant them power” over students in the town square and at their desks at home. What’s more, she writes, it “would significantly undermine the authority of parents.”

Papandrea observes that the seldom-cited second prong of Tinker, the interference-with-the-rights-of-others standard, may yet become more prominent, especially in cases of harassing or demeaning speech; but applying this “ill-defined” phrase in school digital-media cases could pose a very significant threat to students’ speech rights. When speech is actually criminal or seriously threatens violence, writes Papandrea, the recourse should not be school punishment but law enforcement.

Sue Rardin is a writer based in the Boston area.

Read more by Sue Rardin

Read more by Sue Rardin