Poison Pens, Intimidating Icons, and Worrisome Websites: Off-Campus Student Speech that Challenges both Campus Safety and First Amendment Jurisprudence

By Kathy Luttrell Garcia

As the line between off-campus and on-campus student speech is increasingly blurred by the internet, educators and courts alike are struggling to determine the limits of school authority to restrict student speech that originates off-campus but is directed toward an on-campus audience.  Although students retain their First-Amendment-protected rights of free speech and expression on school campuses during school hours,  these rights are subject to exceptions.  These exceptions are constitutionally permissible, even where the speech could not be restricted off-campus, because “student First Amendment rights are ‘applied in light of the special characteristics of the school environment.’”  Because of these characteristics, and the school’s interest in protecting the safety of its students, off-campus student speech that is directed toward an on-campus audience and could be reasonably interpreted as threatening the school or any of its constituents should not be protected from school restriction or discipline.

The Supreme Court has yet to be confronted with such a case, and the lower courts seem divided as to the reach of school authority to restrict such speech.  The disagreement is based upon the tension between the value in protecting the robust exchange of ideas in the school environment, the need to maintain “an environment conducive to learning,” and a very natural concern for school discipline and safety.  This is especially true in light of several well-publicized and tragic school shootings and the growing problem of cyber-bullying.

The Supreme Court has repeatedly acknowledged these competing concerns, beginning in 1969 with its decision in the seminal case of Tinker v. Des Moines Independent School District.  There, the Court upheld the right of students to engage in a silent, passive protest, as long as it did not cause a material or substantial disruption to school activities.  The Court explained that “[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Since Tinker, the Court has recognized several categorical exceptions to the protection of student speech.  Under these exceptions, school administrators may restrict student speech that occurs on campus when it materially and substantially interferes with school order and discipline; is lewd, indecent, or offensive; is sponsored by the school itself; or could be reasonably interpreted as promoting the use of illegal drugs.  The most recent Supreme Court opinion in this line of cases, Morse v. Frederick, explicitly acknowledged the Court’s categorical approach, and lends support to the recognition of additional exceptions.

This article will explain the need for one such exception, that of threatening speech even if it falls short of the requirements for prosecution as a true threat.  Section I will explain the Supreme Court’s jurisprudence in the area of student speech.  Section II will explain why threatening expression has no place in the school environment even where the expression could not be criminally sanctioned, and is particularly problematic in light of recent school shootings and the growing problem of cyber-bullying.  Section III will explain why schools must be permitted to discipline students who direct off-campus threatening expression toward the school or who could reasonably foresee that the expression would come to the attention of school authorities, why existing law is insufficient to offer clear guidance to students or school administrators, and why Morse permits the categorical exclusion of this type of speech from First Amendment protection.

23 St. Thomas L. Rev. 50

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