Education law in the United
States as it relates to student free speech
and the First Amendment looks to four
Supreme Court decisions. Tinker1 is the
litmus test for student expression, while
Fraser, 2 Hazelwood, 3 and Morse 4 expand the
concept to other areas of student life.
Although these decisions can be looked to
for guidance in cyberspace, none are on all
fours with current legal challenges facing
practitioners and the courts.
The 21st century witnessed the beginning
of a new challenge for state and federal legislative bodies and courts. The popularity
of cellphones, computers and other technologies has advanced bullying at school
beyond the traditional shove in the hallway
or profane name-calling. Cyberbullying
among classmates and against teachers
and administrators occurs on and off campus. Although off-campus speech was
addressed 100 years ago by the Wisconsin
Supreme Court, 5 the issue has taken on an
entirely different persona with the advent
of cyberspace. Simply stated: What are the
limits, if any, of student Internet speech?
Does the First Amendment protect off-campus speech that adversely affects the
Since the late 1990s, courts and legislatures have wrestled with balancing student
free speech against the responsibility of
public schools to provide students a safe,
hostile-free learning environment. Today,
the same set of facts before different courts
NLSHOP © SHU T TERSTOCK.COM
has resulted in opposite outcomes.
Consequently, a growing body of statutes
and case law merits consideration of the
issue by the U.S. Supreme Court. A handful of cases have reached the high Court
through certiorari, but all have been
denied review. Attempts to pass federal
legislation regarding cyberbullying were
first introduced in 20086 and have failed.
It is well established that minors are
recognized under the law as persons with
protected constitutional rights. In 1967,
the Court ruled that juveniles have distinct
rights in the criminal setting. 7 Two years
later, in Tinker, the justices endorsed the
right of free expression for high school students while on campus or at a school
event. In that benchmark decision, the
• September 11 attacks on World Trade Center.
• Napster case decision.
• Having your own Blog becomes hip.
• BlackBerry releases first Internet cell phone in the United States.
Court stated that student speech is protected as long as it doesn’t disrupt the school
environment or violate the rights of another person. What a student does online,
whether by email, Facebook status update,
tweet or in a blog, may be censored and
consequences imposed if inappropriate
(i.e., “disruptive” under the Tinker test).
In 1997, the Court ruled that the
Internet is protected by the First
Amendment. 8 But, as in all forms of communication, free speech is not absolute:
“falsely shouting fire in a theatre and causing a panic” 9 is not protected speech. There
are limits based on common sense and the
A few examples illustrate the dilemma
courts face when confronted with a civil
rights case involving student online
speech. There is a fine line between protected speech and that which is subject to
disciplinary measures by the school or by
criminal charges10 or civil actions. 11
• Snow Crash by Neal Stephenson is published.
• President Bush signs the Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003 (CAN-SPAM Act), which is
intended to help individuals and businesses control the amount of
unsolicited email they receive.
• Apple Computer introduces Apple i Tunes Music Store, which allows
people to download songs for .99 cents each.
Rulings on Online Speech Vary
Justin Layshock was a 17-year-old high
school senior in Pennsylvania. In 2005, he
created a fake Myspace profile of his principal. He did this at home on his grandmother’s computer, and he added a photo
of the principal taken from the school’s
website. He referred to the principal as a