Written by Laura Fishwick
Edited by Adam Lewin
The most recent U.S. Supreme Court case to address the legality of school-imposed punishment for student expression was more than forty years ago in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In that seminal case, the Supreme Court found that a state’s interest in maintaining its educational system can justify limitations on students’ First Amendment rights to the extent necessary to maintain an effective learning environment. Id. In Tinker, school officials suspended students for wearing black arm bands to protest the Vietnam War. Articulating the standard still used by courts today, the Court held that a school may regulate student speech or expression if school officials can reasonably conclude that such speech caused or is likely to cause a “material and substantial” disruption to school activities. Id. at 513 (finding no substantial disruption because the protests were non-violent and did not interfere with class activities).
Tinker and subsequent Supreme Court cases have not addressed whether a school may regulate student speech that occurs off campus or online and is not connected to a school event, but that nonetheless causes disruption on campus or in the classroom. Further complicating the analysis of on campus, off campus, and online speech are additional factors such as the location where recorded activity takes place before it is posted online, and the location of the computer used to upload data onto the Internet. This comment explores the recent lower court decisions applying the Tinker standard to school-enforced limits on student speech made on the Internet. In cases of off campus or online speech, some courts have responded to the fact that Tinker involved on campus speech by requiring the school to show a substantial nexus between the speech and the school before applying Tinker. Beyond the nexus inquiry, courts move onto Tinker and examine the intensity of on campus discussions surrounding the expression, the burden the expression places on the administration, and whether the expression contains violent content. (more…)