Reaching Through the Schoolhouse Gate:
Students’ Eroding First Amendment Rights in a
Cyber-Speech World

By Frank D. LoMonte

February 2009

All expressions of opinion are those of the author or authors.
The American Constitution Society (ACS) takes no position on specific legal or policy initiatives.

Reaching Through the Schoolhouse Gate: Students’ Eroding First Amendment Rights in a
Cyber-Speech World
Frank D. LoMonte*
I.

Introduction

Forty years ago, the Supreme Court resoundingly affirmed that young people attending
public schools do not “shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate.”1 The unmistakable implication of Tinker v. Des Moines Independent
Community School District was that students showed up at the schoolhouse possessing the full
benefits of the First Amendment; the only question was how much of that bundle of rights they
were forced to check at the gate.
Recent developments in the law of online speech, however, are rattling the certainty of
that assumption. In the view of at least some federal judges, students do not enjoy – anywhere,
anytime – the same right to comment on school events as ordinary citizens. Rather, so long as
the impact of students‟ words may foreseeably reach school grounds, courts are increasingly
willing to tolerate school punishment for the content of online speech that would enjoy full First
Amendment protection if written by anyone not enrolled in school. Once First Amendment
rights are lost, they seldom are recovered because people who cannot speak cannot arouse
support. The loss often is incremental, with each descending stair step becoming “the new
normal,” and so this latest incursion on young people‟s rights must be viewed in the larger
context of decades of dangerous retrenchment.
Over the last 20 years, the federal courts have substantially eroded the First Amendment
protection of students‟ speech in the public schools, exhibiting a growing reluctance to secondguess even the most irrational disciplinary overreactions. As a result, student publications in
many schools operate under a “zero tolerance” regime for dissent or controversy. Even a
mention that students might be gay, get pregnant, or need information about sexually transmitted
diseases can bring reprisals, and cost journalism instructors their jobs.
When confronted with censorship, students have always been able to take their messages
off campus to enjoy the greater freedom that comes with self-publishing. Self-publishing has
allowed young writers to address sensitive social issues candidly, and to vent their criticism of
school personnel and programs. This speech can have real value – not just for the writer, and not
just for the student audience, but for adults who seek an inside glimpse into what young people
are thinking, even if it may be uncomfortable reading, and we would all be poorer if it were lost.
Yesterday, self-publishing meant starting an “underground newspaper.” Today, it means
creating a website.

*

Executive Director, Student Press Law Center, Arlington, Virginia. J.D., University of Georgia School of Law,
2000. The Student Press Law Center provides free legal information and attorney referral services to college and
high-school journalists and the educators who work with them.
1
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

1

The law of online speech is still evolving, and the relatively few cases testing the limits
of school authority over students‟ homemade web pages have arisen not from traditional
journalism, but from attacks on school personnel posted on blogs, discussion boards, or social
networking sites. There is, however, just one First Amendment. Because it is impossible to craft
an intelligible First Amendment standard that places “bad” speech on one side of the line and
“good” speech on the other, a ruling that administrators may punish writings with no physical
connection to school casts an ominous shadow over all speech, including legitimate journalism
and whistleblower activity.
It is hard not to empathize with burdened school principals who see disrespectful
websites and blog entries as undermining their ability to keep order. But when students engage
in injury-causing behavior off-campus, there are ample off-campus remedies: those victimized
may contact the parents, sue for defamation or invasion of privacy, and in extreme cases alert the
police. If the speech is itself not injurious – that is, if it merely causes a bothersome level of
chatter at the school – there are effective ways to respond that are not directed to the content of
the message (i.e., punishing those who will not stop looking at MySpace during class). The First
Amendment requires exhausting those remedies first.
The creep of government regulatory authority into students‟ off-campus expression
should concern anyone who values the free exchange of ideas on the internet. Some of the recent
First Amendment jurisprudence views speech on the internet as qualitatively different from that
in print, because of its ease of worldwide access, justifying greater regulatory leeway to prevent
harm. This may sound familiar. It was only three decades ago that in FCC v. Pacifica
Foundation (the “seven dirty words” case),2 the Supreme Court determined that over-the-air
broadcasting is so much more intrusive and accessible to youth than the printed word that the
government may restrict speech that is merely “indecent” rather than legally obscene. If we are
not vigilant, what happens to student speech today could impact all online speech tomorrow.
II.

Student Speech Rights in the Pre-Cyberspace Era
A.

“Students are persons…”

To begin with first principles, the Supreme Court recognized in Tinker that “students are
persons under our Constitution,” so that – even on school grounds during the school day –
administrators may restrict student speech only if such speech “materially and substantially
disrupts the work and discipline of the school.”3 In that instance, three students‟ display of black
armbands in silent support of a cease-fire between the United States and North Vietnam was held
to be protected speech, even though the protest provoked sometimes-heated responses from other
students. Justice Fortas‟s opinion emphasized that, in analyzing students‟ First Amendment
rights, the government‟s enhanced disciplinary powers at school were to be considered in “light
of the special characteristics of the school environment” and the need to maintain order during
the school day.4

2

438 U.S. 726 (1978).
Tinker, 393 U.S. at 513.
4
Id. at 506.
3

2

While Tinker often is cited as a landmark in recognizing that the First Amendment
applies to students even while under school supervision, the decision was not a break from the
Court‟s jurisprudence but a natural progression from it. The decision expressly relied on the
Court‟s earlier First Amendment ruling in West Virginia State Board of Education v. Barnette
that students could not be compelled to forsake their religious opposition to swearing allegiance
to the American flag.5 In Barnette, school officials claimed that the state‟s interest in promoting
“national unity” overrode the rights of the individual students to refuse to recite the Pledge of
Allegiance. In one of the most famous passages in all of constitutional jurisprudence, Justice
Fortas decisively established the paramount right of all citizens – including children – not to be
coerced to espouse beliefs dictated by their government: “If there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein.”6
Tinker stands as the high-water mark for student First Amendment rights, and it was not
long before the Burger and Rehnquist Courts began chipping away at it. In 1986, the Court
decided in Bethel School District No. 403 v. Fraser that, even in the absence of a substantial
disruption, a school did not violate the First Amendment by punishing a student for “offensively
lewd and indecent speech” when he used a string of sexual double-entendres while addressing a
student assembly.7 Chief Justice Burger‟s opinion emphasized the “captive” nature of the
audience – attendance was mandatory – and the interest of the school in disowning the speaker‟s
message: “A high school assembly or classroom is no place for a sexually explicit monologue
directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly
appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech
and lewd conduct is wholly inconsistent with the „fundamental values‟ of public school
education.”8 Concurring in the result, Justice Brennan wrote separately to emphasize that the
unique setting of the assembly heightened the state‟s interest, and that a different setting – even
elsewhere in the school – might have yielded a different outcome. Citing the Court‟s decision in
Cohen v. California, the case of a young war protester who was found to have a protected right
to wear a “Fuck the Draft” jacket in public areas of a courthouse, Brennan observed: “If [Fraser]
had given the same speech outside of the school environment, he could not have been penalized
simply because government officials considered his language to be inappropriate[.]”9
The affiliation between school and message was likewise pivotal to the last of the troika
of landmark student speech decisions, Hazelwood School District v. Kuhlmeier.10 In that case, a
St. Louis-area high school principal ordered the removal of articles from the Hazelwood East
High School Spectrum in which teenagers discussed their perspective on divorce, pregnancy, and
5

319 U.S. 624 (1943).
Id. at 642. In a less-celebrated passage, the Court directly confronted the school‟s contention that schoolchildren
occupy a lesser First Amendment status that must yield to the state‟s paramount interest in instilling fundamental
values: “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional
freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important
principles of our government as mere platitudes.” Id. at 637.
7
478 U.S. 675, 685 (1986).
8
Id. at 684.
9
Id. at 688 (Brennan, J., concurring) (citing Cohen v. California, 403 U.S. 15 (1971)).
10
484 U.S. 260 (1988).
6

3

other social issues. His primary justification was that the student authors failed to effectively
disguise the identities of teens who agreed to discuss their pregnancies anonymously, and that
they neglected to seek rebuttal from a divorced father who was unflatteringly portrayed. Three
Spectrum staff members sued, alleging the censorship violated their First Amendment rights.
The Supreme Court rejected their challenge. The Court forged a distinction between
publications that had by rule or by historical practice been maintained as a public forum for the
expression of student opinion, versus non-forum newspapers that functioned as, in effect, the
official “voice” of the school, or that might reasonably be so perceived by readers. In a nonforum paper, the Court held, administrators may overrule students‟ editorial decisions so long as
the decision is “reasonably related to legitimate pedagogical concerns.”11 Significantly, the
Kuhlmeier Court fell back on the justification recognized in Tinker – “the special characteristics
of the school environment” – and elaborated: “A school need not tolerate student speech that is
inconsistent with its „basic educational mission,‟ even though the government could not censor
similar speech outside the school.”12
An instructive line can be drawn between the speech in Barnette and Tinker, which was
unmistakably that of the individual students alone, versus that in Fraser and Kuhlmeier, in which
the speech could, in the Court‟s view, be ascribed to the school. Only in the latter instance has
the Supreme Court ever permitted the state‟s interest in keeping order to override that of the
speaker, and in the absence of those special circumstances, Tinker continues to supply the default
standard.13
B.

Before the Web: A Bright(er) Jurisdictional Line

In the pre-internet era, courts generally had no difficulty concluding that school officials
could not constitutionally punish off-campus publications, even if copies were brought onto
campus. For instance, in Thomas v. Board of Education, Granville Central School District,14 the
Second Circuit reversed a school‟s decision to suspend the editors of an off-campus student
newspaper, Hard Times, who were punished because their humor publication contained lewd
drawings and language. Though there were some physical ties to campus – some articles were
written or typed at school, and copies were stored in a closet at school – these minimal contacts
did not transform Hard Times into “school speech” and give school officials broad regulatory
leeway over it: “[O]ur willingness to grant school officials substantial autonomy within their
academic domain rests in part on the confinement of that power within the metes and bounds of
the school itself.”15 Because school administrators had “ventured out of the school yard and into
the general community where the freedom accorded expression is at its zenith,” the Thomas
11

Id. at 273.
Id. at 266 (internal citation omitted).
13
See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211-14 (3rd Cir. 2001) (Alito, J.) (explaining Tinker
exceptions recognized in Fraser and in Kuhlmeier, and concluding, “Speech falling outside of these (Fraser and
Kuhlmeier) categories is subject to Tinker's general rule: it may be regulated only if it would substantially disrupt
school”); Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 325 (2d Cir. 2006) (“[F]or all other speech, meaning
speech that is neither vulgar, lewd, indecent or plainly offensive under Fraser, nor school-sponsored under
Hazelwood, the rule of Tinker applies. Schools may not regulate such student speech unless it would materially and
substantially disrupt classwork and discipline in the school.”).
14
607 F.2d 1043 (2d Cir. 1979).
15
Id. at 1052.
12

4

court held, “their actions must be evaluated by the principles that bind government officials in
the public arena.”16 The court was wary of letting schools regulate off-campus speech that might
find its way onto campus only fortuitously:
It is not difficult to imagine the lengths to which school authorities
could take the power they have exercised in the case before us. If
they possessed this power, it would be within their discretion to
suspend a student who purchases an issue of National Lampoon,
the inspiration for Hard Times, at a neighboring newsstand and
lends it to a school friend.17
Similarly, the court in Shanley v. Northeast Independent School District18 ruled that the
First Amendment precluded punishing five high school students for the content of an
underground newspaper they created off-campus and distributed after-hours on school grounds.19
Once a student has purposefully brought writings created off-campus into the
schoolhouse during the school day, the rules change. Courts generally have had no difficulty
concluding that schools may, under the Tinker standard, police independently created writings
that are circulated or displayed during class time.20 This includes authority to require that
“underground” publications be reviewed by an administrator for substantially disruptive content
before they may be distributed on campus during the school day, although the review must be
circumscribed in scope and duration to avoid its abuse as a “pocket veto.”21
16

Id. at 1050.
Id. at 1051.
18
462 F.2d 960 (5th Cir. 1972).
19
See also Bystrom v. Fridley High Sch., Indep. Sch. Dist., 822 F.2d 747 (8th Cir. 1987). In Bystrom, the Eighth
Circuit held that it was not categorically unconstitutional for a high school to require prior administrative review of a
publication to be distributed on school grounds, but then added this caution: “The school district asserts no authority
to govern or punish what students say, write, or publish to each other or to the public at any location outside the
school buildings and grounds. If school authorities were to claim such a power, quite different issues would be
raised, and the burden of the authorities to justify their policy under the First Amendment would be much greater,
perhaps even insurmountable.” Id. at 750.
20
Compare Porter v. Ascension Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004) (student‟s First Amendment rights
were violated when he was disciplined for two-year-old homemade drawing depicting violent siege at his school,
which his brother brought onto campus without his knowledge) with Boim v. Fulton County Sch. Dist., 494 F.3d 978
(11th Cir. 2007) (no First Amendment violation in disciplining student for violent journal entry written off-campus
that described a dream about killing a specific teacher, where the student brought the notebook containing the poem
to class and was caught passing the book to a classmate).
21
See, e.g., Bystrom, supra note 19; Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960, 969 (5th Cir. 1972)
(“Given the necessity for discipline and orderly processes in the high schools, it is not at all unreasonable to require
that materials destined for distribution to students be submitted to the school administration prior to distribution.”);
see also Eisner v. Stamford Bd. of Educ., 440 F.2d 803 (2d Cir. 1971) (striking down overbroad prior-review policy
but indicating that narrowly tailored policy with brief deadline within which reviewer can act would be
constitutional); Baughman v. Freienmuth, 478 F.2d 1345 (4th Cir. 1973) (same). A requirement of prior review
before a publication may be distributed is recognized as a form of prior restraint. See, e.g., Slotterback v. Interboro
Sch. Dist., 766 F. Supp. 280, 298 (E.D. Pa. 1991) ("To be sure, these paragraphs [establishing mandatory prior
review of 'nonschool written materials'] form a system of prior restraint on students' protected, personal first
amendment speech."). Prior restraint is the most noxious and disfavored of incursions on the First Amendment, to
be tolerated only in the most extreme circumstances. See Near v. Minnesota, 283 U.S. 697, 714 (1931) (noting that
the First Amendment's primary purpose is to prevent “previous restraints upon publications” by the government).
17

5

III.

Disciplinary Authority Jumps the Schoolhouse Gate: Morse v. Frederick

The Supreme Court had the opportunity in 2007 to categorically determine whether
school disciplinary power could reach off-campus conduct at an event that, unlike a field trip,
was not an official school function. Instead, in Morse v. Frederick,22 which is often referred to as
the “Bong Hits 4 Jesus” because of the message written on the banner that was the subject of the
case, the Court fashioned a narrow, fact-specific exception to Tinker where speech at a “school
sanctioned” event is reasonably interpreted as encouraging students to use illegal drugs.
In Morse, a 5-4 majority of the Court held that a school did not violate the First
Amendment in punishing a student who, at a public gathering during school hours where
teachers provided supervision, stood directly across from the school and displayed a banner that
the student later claimed was a nonsensical ploy for attention. Writing for the majority, Chief
Justice Roberts expressly rejected the argument that Morse “[wa]s not a school speech case,”
noting that the events “occurred during normal school hours” and at an activity “sanctioned” by
the school.23 Even in Morse, the Court emphasized that the speech was made at a school activity,
echoing the point Justice Brennan made in Fraser: “Fraser‟s First Amendment rights were
circumscribed” while at school, but had he “delivered the same speech in a public forum outside
the school context, it would have been protected.”24
Justices Alito and Kennedy supplied the decisive votes to create a majority, and their
concurrence makes plain that Morse does not provide an unrestrained license for policing offcampus expression: “I join the opinion of the Court on the understanding that … it goes no
further than to hold that a public school may restrict speech that a reasonable observer would
interpret as advocating illegal drug use[.]”25 Justice Alito went on to explain that the First
Amendment would not tolerate a standard under which a school could censor speech merely
because, in the judgment of administrators, it interfered with the school‟s self-defined
“educational mission,” a standard fraught with potential for mischief.26 Morse can be read
narrowly, for the unremarkable proposition that when students are acting under school
supervision, as they are on a field trip, they are speaking “at school,” or more broadly, to say that
speech physically off school grounds that is directed at the school equals speech “at” school.
The Alito concurrence plainly counsels in favor of a limited reading, but a few courts have
regarded Morse as a broad license to extend school authority beyond school boundaries.
The limiting Alito construction notwithstanding, Morse almost immediately began being
cited for the proposition that students no longer enjoy refuge in the First Amendment for any
22

Morse v. Frederick, 127 S.Ct. 2618 (2007).
Id. at 2624. The event in this case involved attendance at the torch relay for the 2002 Winter Olympic Games.
24
Id. at 2626-27.
25
Id. at 2636 (Alito, J., concurring).
26
“The opinion of the Court does not endorse the broad argument … that the First Amendment permits public
school officials to censor any student speech that interferes with a school's „educational mission.‟ … This argument
can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. The „educational
mission‟ of the public schools is defined by the elected and appointed public officials with authority over the schools
and by the school administrators and faculty. As a result, some public schools have defined their educational
missions as including the inculcation of whatever political and social views are held by the members of these
groups.” Id. at 2637 (Alito, J., concurring).
23

6

speech reasonably, or even unreasonably, interpreted as condoning anything dangerous and
illegal – specifically, violence. Courts have always been hesitant to second-guess the
disciplinary decisions of school administrators, but never more so than when administrators are
responding to perceived threats against students or school personnel.27 Hence, in one of the
earliest applications of Morse, the Fifth Circuit found no constitutional violation in a Texas
principal‟s decision to remove a high school sophomore from school and transfer him to a
disciplinary alternative school in response to a violent fantasy story written in a notebook the
student was carrying in his school backpack.28 The opinion expressly cited the infamous April
1999 killings of 12 students and a teacher at Colorado‟s Columbine High School, and the
somewhat less well-known March 1998 slaying of four middle-school students and a teacher in
Jonesboro, Arkansas, by a pair of shooters aged 11 and 13. It concluded: “School administrators
must be permitted to act quickly and decisively to address a threat of physical violence against
their students, without worrying that they will have to face years of litigation second-guessing
their judgment as to whether the threat posed a real risk of substantial disturbance.”29
IV.

Courts Struggle With School Authority Over Cyber-Speech
A.

Jurisdictional Lines Blur Where Speech Involves Violence

Anxiety over school violence has prompted a number of courts to relax the geographical
barriers to school discipline where students use electronic communications to share thoughts
interpreted as signaling violent tendencies. While “true threats” lie outside the purview of the
First Amendment,30 these cases entail something noticeably less than concrete and imminent
danger – speech that in the world outside of school would normally be protected.
In some instances, courts have found sufficient nexus with the school by showing that the
off-campus speaker actually “brought” the website onto campus, such as by using a school
computer to show the site to others. In one such case, J.S. v. Bethlehem Area School District
(“Bethlehem”),31 the Pennsylvania Supreme Court held that a school did not violate the First
Amendment by expelling an eighth-grade student for creating a web page that profanely
enumerated the reasons his teacher should die and solicited donations for a hit-man. The court
emphasized both the severity of the impact on the targeted teacher – she was so traumatized that
she went on antidepressants, was unable to complete the school year, and did not return for the
following year – and that the student creator used school computers at least once to show the site
to a classmate, and told others at school about the site.32 While the court looked at other factors
27

See, e.g., LaVine v. Blaine Sch. Dist., 257 F.3d 981, 992 (9th Cir. 2001) (finding no First Amendment violation in
school‟s expulsion of student with troubled personal history who showed his teacher a violent poem, even though he
was diagnosed as not being dangerous: “We review … with deference, schools‟ decisions in connection with the
safety of their students even when freedom of expression is involved. … School officials have a difficult task in
balancing safety concerns against chilling free expression.”
28
Ponce v. Socorro, 508 F.3d 765, 768 (5th Cir. 2007).
29
Id. at 772.
30
Watts v. United States, 394 U.S. 705, 707 (1969).
31
807 A.2d 803 (Pa. 2002).
32
Several other courts, while recognizing that schools may sometimes sanction students‟ online writings, have
declined to permit punishment on the basis that the schools failed to demonstrate a substantial disruption satisfying
Tinker. See Emmett v. Kent Sch. Dist., 92 F. Supp. 2d 1088, 1090 (W.D. Wash. 2000) (student could not be

7

indicating that the student directed his speech at the school – the audience was a “specific
audience of students and others connected with this particular School District” and school
officials “were the subjects of the site” – it appears that the student‟s actual dissemination of the
speech on school grounds was essential to the outcome. The court framed the standard this way:
“[W]here speech that is aimed at a specific school and/or its personnel is brought onto the school
campus or accessed at school by its originator, the speech will be considered on-campus
speech.”33
In other cases, no physical nexus with the school has been required. Rather, these courts
have permitted school discipline on the theory that online speech is capable of reaching school,
and foreseeably likely to do so, or that the impact of the speech is anticipated to be felt at school.
For instance, in Wisniewski v. Board of Education,34 the Second Circuit found no impediment to
disciplining a student for his use of an instant messaging icon designed to look like a cartoon of
his teacher being shot. The student, Aaron Wisniewski, did not use school computers to create
or send his message, and there was no evidence that he showed the icon to anyone at school or
that he intended for his classmates to do so. Nevertheless, the court found that it was reasonably
foreseeable that the caricature would come to the attention of the teacher and of school officials,
and that if seen, it would “foreseeably create a risk of substantial disruption within the school
environment.”35
It is unsurprising that courts hesitate to second-guess disciplinary decisions where school
officials are responding to what they say were credible threats of bodily harm. Nevertheless, the
leap made in Wisniewski to reach the court‟s desired outcome ought not to be made casually.
Wisniewski may mean that digital speech off campus is punishable under the same standards as
on-campus speech because, owing to the pervasiveness of electronic communications, the speech
itself is capable of entering the school. What is missing in this standard is any requirement that
the speaker intend that the message be viewed at school, or that he do anything on campus to call
attention to the speech; indeed, the court said Wisniewski‟s intent was immaterial.36 Importantly,
the Wisniewski case did not involve content posted on an unsecured website, where anyone with
an internet connection could view it, but rather an electronic text message. Wisniewski‟s teacher
could not stumble onto his message with a Google search; the message could not reach the
teacher unless one of its recipients forwarded or printed it. This means that the speaker is
charged with anticipating that his message will be shown, without his authorization, to people
with whom he never intended to communicate. That legal standard would be dangerously openended enough, but the alternative way to read Wisniewski – that online speech is punishable as
on-campus speech because the effects of the speech will be felt on campus – is even more
punished for website containing “mock obituaries” of classmates, where school showed no evidence that the
obituaries “were intended to threaten anyone, did actually threaten anyone, or manifested any violent tendencies
whatsoever”); Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1178 (E.D. Mo. 1998) (suspension of
student for off-campus personal web page that called principal an “asshole” and the school “fucked up” violated the
First Amendment, where there was no showing that the page substantially disrupted school: “Disliking or being
upset by the content of a student's speech is not an acceptable justification for limiting student speech under
Tinker.”).
33
Id. at 668.
34
494 F.3d 34 (2d Cir. 2007).
35
Id. at 39-40.
36
Id. at 40.

8

perilous, for that rationale can apply equally to all speech, online or not. If this latter reading of
Wisniewski prevails, then it is no exaggeration to say that students never – at any time and in any
medium – have First Amendment rights coextensive with those of adults.
To be sure, the Supreme Court‟s constitutional analysis in Kuhlmeier is deeply flawed,
but like it or not, Kuhlmeier is the law. And by applying “public forum” analysis to school
speech, Kuhlmeier roots school officials‟ disciplinary authority squarely in geography. As the
real-estate pros say, location matters. Public forum analysis is all about the government‟s ability
to control the way that the space it owns – the park, the sidewalk, the courthouse lobby – is used
for expressive conduct. Outside the school context, no one would seriously suggest that
government may regulate lawful speech off government property based on the way people might
react to it on government property. The state may reasonably regulate the time, place and
manner of speech on government property, not affecting government property.
We would not in any other context permit the punishment of legal off-campus activity –
and recall that in Wisniewski, the police investigated and found no unlawful conduct – based
solely on its impact on persons on-campus. We would not permit the principal to discipline a
student who cheats on his girlfriend and callously breaks off their relationship, even though the
girlfriend comes to school sobbing and the breakup distracts her and those around her from their
studies. We would not permit the principal to punish an 18-year-old beauty queen who poses
scantily clad for a swimsuit magazine, even though the magazine is the talk of the school and
students cannot stop discussing it during class time. If we would not countenance state
interference in these contexts, then surely we cannot afford speech a uniquely lesser-protected
status.
B.

Disciplinary Policies Without Geographical Limits Are Fatally Overbroad

In several recent instances, students have brought facial challenges to disciplinary
policies purporting to penalize all “disruptive” or “abusive” speech, regardless of where the
speech is uttered and whether it physically makes its way onto campus. Courts evaluating
disciplinary policies that lack any geographic nexus with the school have had little difficulty
recognizing the policies as unconstitutional, because they are not sufficiently tailored to
minimize impact on legitimately protected speech.
In Killion v. Franklin Regional School District,37 a student was suspended from school
for making crass comments about the school‟s athletic director – including crude remarks about
the size of his genitals – in an email circulated to several classmates. A copy of the email was
left in a teacher lounge, but the message otherwise had no physical connection to the school or
school events. The court held that the school district‟s policy penalizing “verbal/written abuse of
a staff member” was unconstitutionally vague and overbroad, because it was neither limited to
instances in which the conduct caused or threatened a substantial disruption, nor geographically
limited to school premises.38

37
38

136 F. Supp. 2d 446 (W.D. Pa. 2001).
Id. at 459.

9

In Flaherty v. Keystone Oaks School District,39 a different judge in the Western District
reaffirmed Killion in the case of a high school student disciplined for using an online message
board to transmit vulgar trash-talk, including insults about a student athlete and his mother, in
discussing a school volleyball rivalry. The school took the position that it could punish the
student because he brought “shame” and “embarrassment” to the volleyball program and the
school with his comments. The court disagreed. The court found that a school handbook policy
prohibiting “[i]nappopriate language” and “verbal abuse” toward school employees or students
was overbroad and vague, “because they permit a school official to discipline a student for an
abusive, offensive, harassing or inappropriate expression that occurs outside of school premises
and not tied to a school related activity.”40
Although these cases arise out of First Amendment challenges, their reasoning is
grounded in fundamental notions of due process – namely, that the government may not punish
conduct without giving reasonable notice of what is prohibited. A student cannot be expected to
live her life looking over her shoulder and wondering whether her statements about conditions at
her school might get back to those at school and prompt a reaction.
V.

Dueling Views of “Substantial Disruption” Via Online Speech
A.

Doninger and Blue Mountain: Tinker Stretched to the Breaking Point

Whether perceived or real, threats of violence against the school community present the
trickiest interplay of First Amendment freedoms versus legitimate public safety interests. But
when the speech presents opinions that are merely insulting or belittling of school personnel,
with no undercurrent of violence, the school cannot invoke “public safety” to validate a
disciplinary decision. These latter types of cases are the most foreboding for legitimate
journalism, and for the rights of journalists and commentators to frankly criticize school
officials. Although Tinker‟s requirement that the school demonstrate actual or foreseeable
disruption should guard against the worst overreaching by errant officials, that protection is often
more illusory than real, because of the leeway that courts afford schools in determining when a
student‟s conduct is “disruptive.”
The most egregious reach by a court seeking to rationalize school discipline of purely offcampus speech came in the case of a Connecticut high-school junior who used a personal blog to
seek public support for her side in a dispute with school administrators. The student, Avery
Doninger, was a class officer who became frustrated in negotiating with her principal over the
scheduling of a battle-of-the-bands concert. Doninger created a publicly accessible entry on the
blogging site LiveJournal.com in which she used a coarse word (“douchebags”) to refer to
administrators and asked those who supported her position to email and phone the administrators
to rally support for the concert. Her principal responded by declaring Doninger ineligible to seek
39

247 F. Supp. 2d 698 (W.D. Pa. 2003).
Id. at 706. See also Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000). In Emmett, high
school administrators suspended a student who had created a website with “mock obituaries” of his classmates. The
District Court enjoined the suspension, finding that the speech in question had no connection to any “class or school
project” or was in any way “school-sponsored.” Indeed, while “the intended audience was undoubtedly connected
to” the high school, “the speech was entirely outside of the school‟s supervision or control.” Id. at 1089.
40

10

senior-class office and by refusing to seat her when her classmates elected her anyway, and later
by banning Doninger and her supporters from wearing T-shirt messages protesting her treatment.
The case initially came to district court on Doninger‟s petition for an injunction to permit
her to reclaim her student office pending trial. The district court denied the petition, finding no
First Amendment violation on two bases: first, that Doninger‟s off-campus blog posting was
punishable as “lewd” speech under the Fraser standard even though it took place far outside
Fraser‟s “captive audience” context, and second, that holding class office was a privilege and
not a right, and that school officials were free to revoke the privilege if the student failed to
demonstrate “good citizenship.”41
The Second Circuit affirmed denial of the injunction, but on a different rationale.42 The
appeals court questioned whether Fraser could legitimately apply to off-campus speech, and
instead decided the case under the Tinker standard, finding Doninger‟s speech to be substantially
disruptive. The court relied on evidence that Doninger‟s blog entry was misleading, because a
portion of the blog, which both the district and appellate courts took out of context, asserted that
a final decision had been made to cancel the concert, when in fact there was a chance it would be
held, as it ultimately was. In the Second Circuit‟s view, that transmittal of misleading
information created a foreseeable risk that administrators would have to waste time quelling
protests from students incensed by the “cancellation.” The court ignored evidence that
disruption of school was not cited as the basis when the school disciplined the student – the only
justification given was the use of disrespectful language. The court also glossed over the fact
that three weeks elapsed between the blog posting and the discipline with no sign of unruly
student reaction to the “cancellation.” In the court‟s view, Tinker permits not merely preemptive
action to stop a potential disruption, but after-the-fact punishment of a potential disruption that
never came to pass.
The case returned to district court on the school officials‟ motion for summary judgment.
The court granted judgment for the defendants on Doninger‟s main First Amendment claim,
leaving only a subsidiary claim arising from the ban on pro-Doninger T-shirts at a school
function. The court recognized that the facts were in dispute as to whether the discipline truly
was based on disruption of the school or the use of crude language, but concluded that in either
case, First Amendment law was not clearly settled that the discipline was unlawful. Because
they violated no clearly established legal right, Doninger‟s principal and superintendent were
entitled to qualified immunity, meaning they could not be compelled to pay damages.
Both the district and appellate courts emphasized that the outcome was driven by the
unique nature of the discipline – stripping the student of elective office but not removing her
from classes or otherwise depriving her of a constitutionally protected interest. This provides a
future speaker the opportunity to challenge a suspension or expulsion as distinct from Avery
Doninger‟s punishment. But in the process, it does violence to the law of First Amendment
retaliation, for it has never been the law that retaliation for the content of speech is lawful so long
as the speaker is not deprived of a constitutional entitlement. Rather, retaliation for engaging in

41
42

Doninger v. Niehoff (“Doninger I”), 514 F. Supp. 2d 199 (D. Conn. 2007).
Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).

11

protected speech is unlawful if the retaliatory act would be sufficient to deter a reasonable person
from speaking again – an analysis that none of the Doninger rulings bothered to conduct.43
A few months after the Second Circuit handed down Doninger, a district court in
Pennsylvania fashioned a makeshift First Amendment standard to uphold a middle school‟s
punishment of a student who, angry over being punished for a dress-code violation, created a
mock MySpace profile ridiculing her principal.44 The profile was a wildly exaggerated mockery
of a typical social networking page, in which the principal, who was pictured but not named,
bragged about being a pedophile who had sex in his office. As in Doninger, no school resources
or time were used, and there was no evidence that the student displayed the contents of the web
page on school grounds; in fact, MySpace was inaccessible on school computers. The sum total
of the profile‟s impact on school decorum was one teacher‟s testimony that he twice had to quiet
his class at the start of the day to silence talking about the website, and more generalized
testimony about a “buzz” among students indicating they had viewed the site. Nevertheless, the
court in J.S. v. Blue Mountain School District (“Blue Mountain”) held that the website was
sanctionable under a legal analysis that borrowed elements from Tinker, Morse, and Fraser.
Even conceding that no substantial disruption occurred, the court found that a school may
lawfully punish “vulgar, lewd, and potentially illegal speech that had an effect on campus.”45
The Blue Mountain ruling heavily emphasized the ease with which the internet empowers
students to transmit messages, suggesting that the availability of online communications makes
established First Amendment standards obsolete: “Today, students are connected to each other
through email, instant messaging, social networking sites, and text messages. An email can be
sent to dozens or hundreds of other students by hitting „send.‟ … Off-campus speech can become
on-campus speech with the click of a mouse.”46 This perception that digital media are uniquely
dangerous, and that their dangerousness calls for relaxing the burden on government to justify
limiting speech, pervades the rulings in Blue Mountain, Bethlehem, Wisniewski, and Doninger.
Fortunately, this casualness about First Amendment standards is not universally accepted.
B.

Discussion Does Not Equal Disruption: Layshock

In Layshock v. Hermitage School District,47 a district court confronted a high school
student‟s claim that his school violated his First Amendment rights by suspending him for an offcampus MySpace page that, like the page in the Blue Mountain case, used vulgar language to
ridicule the school principal. The court did not linger over the propriety of school authority over
online speech, simply observing that it was the state‟s burden to show a sufficient “nexus” with
the school – and indicating that a substantial disruption of school orderliness could supply that
43

See, e.g., Mendocino Env’tl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999) (“[T]he proper
inquiry asks whether an official's acts would chill or silence a person of ordinary firmness from future First
Amendment activities.”) (internal quotations omitted); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)
(harassment for exercising the right of free speech not actionable if it was “unlikely to deter a person of ordinary
firmness from that exercise”).
44
J.S. v. Blue Mountain Sch. Dist., No. 3:07cv585, 2008 WL 4279517 (M.D. Pa. Sept. 11, 2008).
45
Id. at *6.
46
Id. at *17.
47
496 F. Supp. 2d 587 (W.D. Pa. 2007). The case is on appeal to the Third U.S. Circuit Court of Appeals, Docket
Nos. 07-4465 and 07-4555.

12

nexus. The court applied the Tinker standard, finding that the parody page merely caused
curiosity and discussion on campus, not true disruption: “The actual disruption was rather
minimal – no classes were cancelled, no widespread disorder occurred, there was no violence or
student disciplinary action.”48
The school argued for application of the Fraser “lewd speech” standard, contending that
Justin Layshock‟s parody profile – in which the “principal” purported to describe himself as a
“big whore” and a “big hard-ass” – was punishable by virtue of its accessibility on campus. The
court categorically rejected extending Fraser to off-campus speech: “[B]ecause Fraser involved
speech expressed during an in-school assembly, it does not expand the authority of schools to
punish lewd and profane off-campus speech. There is no evidence that Justin engaged in any
lewd or profane speech while in school.”49
Significantly, the Layshock court took care to examine the basis for the punishment, and
had no difficulty concluding that the suspension was imposed purely for the content of the
student‟s speech, and not for any non-speech disruptive conduct on campus. Thus, the school
could not justify its actions by claiming that the discipline was for on-campus misconduct, such
as Layshock‟s admitted use of a school computer to show the profile to several classmates during
a Spanish class. The court properly recognized that contention as a post-hoc attempt to decouple
Layshock‟s punishment from the content of his message.
VI.

The Perils of Unbridled School Discretion Over Online Speech
A.

Runaway Government Authority: The Failed Experiment of Kuhlmeier

Twenty years of experience with the Kuhlmeier standard has proven that, given largely
unreviewable discretion to determine what content is hurtful to the school‟s educational mission,
many school administrators will abuse that authority to refuse to publish anything they perceive
as critical or controversial. This includes benign mentions of same-sex relationships between
students,50 acknowledgment that high-school girls have babies,51 and disclosure of possible
wrongdoing by school employees.52 The brunt of censorship falls disproportionately on gays,
48

Id. at 600.
Id. at 599-600.
50
See, e.g., Kevin Wilson, School Board Plans to Update Publication Policy, CLOVIS NEWS J., June 25, 2008 (New
Mexico school district decided to strip students of editorial control over publications in response to yearbook‟s
publication of photo of same-sex couple as part of a spread about relationships).
51
See, e.g., Kathleen Fitzgerald, Principal Pulls Pregnancy Story from Texas Yearbook, STUDENT PRESS LAW
CENTER NEWS FLASH, Feb. 13, 2008 (Texas high school principal refused to distribute yearbook containing photo
spread telling story of two teenage mothers who returned to school to complete their diplomas, claiming that the
story “glamorized” unwed motherhood).
52
See, e.g., Melanie Hicken, She’s Making Headlines, ORANGE COUNTY REG., Aug. 8, 2008 (California teacher was
stripped of high school newspaper adviser position “after allowing students to run several editorials criticizing dirty
bathrooms, bugs in cafeteria food and teachers who were unavailable after class”); Steven Harmon, Bill Makes it
Safe to Protect Students’ Free Speech Rights, SAN JOSE MERCURY NEWS, Mar. 2, 2008 (discussing incident in
which school board threatened closure of student newspaper in retaliation for articles critical of school); Eun Lee
Koh, Muckraking is Permitted, Student Journalists Learn, But Just a Bit, N.Y. TIMES, Jan. 7, 2001 (New York high
school principal forbade publication of an article criticizing the unsanitary conditions and lack of availability of
bathrooms “until the tone was changed”).
49

13

religious minorities and other “outliers,” for whom being a teenager in high school can already
be a daily gamut of ostracism. When such students seek the empowerment of a voice in student
media as an antidote to their alienation, they often are told by school authorities that their mere
visible presence in a student publication is intolerable to the community.53 This noxious brand of
censorship lends official sanction to the heckler‟s veto; for the students victimized by it, the
impact is as palpable as a schoolyard beating.
Censorship of topical speech, even where it is sharply critical of school policies or school
personnel, cheats the listening audience, including the adult audience, as well as the speaker.
Some of the most important policy decisions facing America involve the effectiveness of our
educational programs. If a student wishes to voice her opinion that abstinence-only sex
education is ineffective, and that students are tuning out the lectures, that is potentially valuable
information – for educators, policymakers, and parents. Sadly, in some school districts,
publication of that student‟s opinion will be treated as a career-ending infraction for her
journalism teacher.54
Those who oppose the censorship of student expression frequently find themselves
shadow-boxing against mythical justifications. The first is the contention that schools are legally
liable for the speech of students, so that administrative control is necessary to minimize
exposure. In reality, there is no evidence that student publications are litigation-prone; indeed,
there is not a single published appellate case holding a public high school liable for defamation,
invasion of privacy, or other tortious injury inflicted by student media. To the contrary, in the
very few student-media cases on record, all of which are at the college level, courts have been
quite clear that schools incur greater risk of liability by interjecting themselves into editorial
decisions.55 The second myth is that, like journalists in the professional world, students must be
answerable to an experienced editor (i.e., the principal) so they can learn sound journalistic
practices. But there is no “teaching” in the typical censorship case. A student learns nothing
about journalistic standards by being told: “I am killing your story because I allow only
coverage that is biased in favor of the school.”56 As flimsy as these rationales are when applied
to school-sponsored newspapers or broadcasts, they are of course wholly inapplicable to
individual speech on social networking pages. There can be no pretense that schools‟ interest in
controlling that speech is based on anything other than its editorial content.

53

See, e.g., Claudia Lauer, Students Fight to Write: Battle Begins After Principal Halts Paper with Gay Editorial,
MYRTLE BEACH SUN NEWS, Dec. 18, 2008 (principal would not permit students to distribute independently funded
and produced newspaper on campus because it contained a front-page column criticizing California‟s anti-gaymarriage amendment with a photo of two openly gay male students holding hands).
54
See, e.g., Bruce Lieberman, ACLU Sues District over Student Paper, SAN DIEGO UNION-TRIBUNE, Nov. 12, 2008
(teacher‟s lawsuit alleges that high school principal killed journalism program and eliminated adviser position in
retaliation for an article accurately reporting on a local controversy involving use of the school building as an
emergency shelter, and an editorial criticizing abstinence-only sex education).
55
See Milliner v. Turner, 436 So. 2d 1300 (La. Ct. App. 1983) (university could not be held liable for allegedly
defamatory article in student newspaper over which it exercised no editorial control); McEvaddy v. City Univ. of
N.Y., 633 N.Y.S.2d 4 (N.Y. App. Div. 1995) (same); Lewis v. St. Cloud State Univ., 693 N.W.2d 466 (Minn. Ct.
App. 2005) (same).
56
It goes without saying that professional newspaper editors are not allowed to review stories about themselves.

14

B.

The Internet Does Not Justify a New First Amendment Rulebook

Those who advocate for a greater government role in policing students‟ online speech
invariably come back to one assertion: as Judge Munley postulated in Blue Mountain, the
internet is qualitatively different from other methods of communication, making traditional First
Amendment jurisprudence a poor fit. Under this view, the ability of students to instantaneously
reach a worldwide audience – including the entire school community at once – so magnifies the
ability to do harm that greater restraints are justified. This contention misfires for several
reasons.
First, as Tinker makes clear, school authority over student speech must be moored in the
state‟s interest in maintaining the orderly functioning of the school. Students have always had
the ability to reach enough fellow students – through leaflets, posters or whisper campaigns – to
create disorder within the school. The courts have not previously seen fit to relax the Tinker
standard simply because, for instance, copiers and fax machines became more plentiful, or
cellular telephones more ubiquitous. One‟s right to display a yard sign endorsing a political
candidate does not change just because the country road fronting the house is widened into an
interstate highway. The ease with which the message can be successfully transmitted and
received has never been the deciding factor in whether speech enjoys First Amendment
protection.57 The district court‟s sly turn of phrase in Doninger – that online speech can enter the
campus “with the click of a mouse” – could just as easily be replaced by “the whirr of a fax
machine,” or even “the scrape of a pair of sneakers.” Communication has been portable since
the day cave paintings gave way to mastodon skins. Interestingly, no school has ever argued that
school newspapers should be entitled to a higher level of First Amendment protection than that
afforded to the New York Times on the grounds that it is far easier to reach a damagingly large
audience in the Times.
There is in fact no evidence that websites are such an efficient way of successfully
reaching a sufficiently large audience to disrupt school that a new-and-different level of First
Amendment solicitude is warranted. There are professionally trained journalists operating
professionally designed blogs whose viewership numbers in the double digits. The implication
that the online medium makes speech punishable in a way that verbal communication or a
handwritten note would not be relies on the fanciful notion that teenagers‟ social networking
pages enjoy an audience the size of the “Drudge Report.” It is not enough to say that speech was
“put on the internet” any more than it would be sufficient to say that speech was “put on a sign.”
Some signs are illuminated in neon over Broadway, and others are planted in a front yard in the
countryside. And so it is with the web.58

57

If the ease of immediately reaching those capable of disrupting the school were a decisive consideration, that
factor would weigh in favor of tighter regulation of the lowest-technology methods. Not every home has internet
access, and not every student will stumble onto a website criticizing the principal, but every student will see a handdrawn paper flyer taped to the school entryway.
58
In the Wisniewski case, the facts showed that 15 people received the instant message depicting the teacher being
shot. Wisniewski v. Bd. of Ed., 494 F.3d 34, 36 (2d Cir. 2007). In the Blue Mountain case, the student‟s MySpace
page spoofing her principal was, after briefly being available to any MySpace user who discovered it, placed on an
invitation-only basis so that it was viewable only by 22 approved friends. J.S. v. Blue Mountain Sch. Dist., No.
3:07cv585, 2008 WL 4279517, at *2 (M.D. Pa. Sept. 11, 2008).

15

The concern that online remarks about the principal could be viewed by a nationwide
audience and could persist indefinitely in cyberspace is of no constitutional significance. That a
viewer in Tacoma might form a negative impression of a principal in Tampa has no bearing on
the school‟s ability to maintain good order. If the principal is injured in his career ambitions,
like landing that dream job in Tacoma, by factually false allegations, he can and should pursue a
defamation action. But his career prospects are not the interests of the state, and they carry no
weight in a Tinker analysis.
The pervasiveness of digital communications cuts against unbridled expansion of state
authority, not in favor of it. To a greater and greater degree, young people live their lives online
– they form and dissolve relationships, collaborate in playing games or creating works of art, and
furnish the real-time minutiae of their daily lives for their friends to follow. The Pew Internet
and American Life Project reports that more than half of all teenagers have created and posted
content to the internet so that they could be considered “publishers.”59 For this generation and
those to come, to say that government can regulate their “electronic communication” is
meaningless; there is no other communication. In short, while it is fashionable to assert that “the
internet has changed everything” in American culture, the foundational rules of our Constitution
remain. It is our view of the nature of speech, not the Constitution, that must change to keep
pace with technology.
Consider the practical implications of a rule that off-campus speech is punishable if
people on campus are reasonably likely to learn about the speech (Wisniewski) and if the speech
causes school officials to expend any substantial amount of time responding to it (Doninger).
Such a rule is inherently flawed because it lacks a limitation that only “wrongful” or “low-value”
speech may be punished, and, indeed, it is impossible to create a “low value speech” standard
that intelligibly constrains the government‟s enforcement discretion. The problem is clear when
you consider the student who addresses a state legislative committee at a public meeting to call
attention to a safety hazard at her school. Although most would agree that the student‟s speech is
of high value and is worthy of protection, she has engaged in speech that people at the school are
reasonably likely to learn about (Wisniewski) and that is quite likely to require a response from
school officials (Doninger). As a result, in the Second Circuit, she may have no First
Amendment claim if she is vindictively punished by her principal. This illustrates why the
analysis applicable to on-campus speech is such a poor fit for off-campus speech. When
analyzing on-campus speech, the substantive merit of the speech is not decisive, because the
Tinker line of cases speaks in terms of control over school premises while school business is
being conducted. If the freshman algebra class decides that they will no longer answer questions
about algebra because they wish to turn the class into a discussion group about recycling, they
have said nothing wrongful – their speech beneficially addresses a matter of public concern – but
they have disrupted class and can be punished. But if a student‟s off-campus website asks
community members to contact the principal‟s office to urge the school to recycle, it should be
beyond dispute that the website is protected speech even if the principal‟s email box is
bombarded with messages. That we can no longer be confident of the answer exposes the fatal
weakness in attempting to cram off-campus speech into an ill-fitting on-campus framework.

59

AMANDA LENHART & MARY MADDEN, PEW INTERNET & AMERICAN LIFE PROJECT, TEEN CONTENT CREATORS
AND CONSUMERS, (2005), available at http://www.pewinternet.org/pdfs/PIP_Teens_Content_Creation.pdf.

16

The notion that speech can be punishable merely because it “targets” a school audience is
untenable. There is a meaningful difference between speech that is about the school and speech
that is intended to be read at the school during school hours. It is one thing to say that a student
who holds up a “Bong Hits” banner while surrounded by fellow students at a school-supervised
outing across the street from school is purposefully addressing his speech to a school audience.
It is quite another matter to assert that a blog posted in the evening on LiveJournal.com – the
potential audience of which is comprised mostly of adults who never intend to set foot in the
school – is “targeting” a school audience. To shut down speech that is theoretically accessible to
the entire world to make sure that none of it reaches the sliver of the world that attends Avery
Doninger‟s Lewis B. Mills High School is overbreadth writ large.
The Supreme Court has thus far regarded the internet with the same First Amendment
solicitude as print publishing, and not the lesser status afforded to over-the-air broadcasting.
Accordingly, the Court has resisted efforts to impose content-based controls in the name of
protecting young viewers, finding congressional efforts unconstitutionally overbroad.60 Though
the Supreme Court has not yet had occasion to apply its online-speech jurisprudence in the
school setting, Justice Alito‟s forceful concurrence in Morse suggests that he and concurring
Justice Kennedy are prepared to venture outside the schoolhouse gate as far as the neighboring
hillside, but no further. This should give pause to expansionists who believe Wisniewski and
Doninger flung the gate wide open.
Let us be clear about what is at stake if the Doninger line of reasoning is allowed to
prevail. Courts generally have held that where a student produces an off-campus publication for
distribution on school premises during school time, it is not unconstitutional to require prior
administrative review as a precondition to circulating the publication.61 If speech about the
school on a student‟s website occupies the same status as an underground newspaper because of
the website‟s potential to be accessed at school, or to provoke a reaction at school, then there is
no principled objection to prior administrative review before the website may be posted – or to
discipline of a student who posts without prior review. That is the path down which the
Doninger reasoning inexorably points us.62

60

See, e.g., Reno v. ACLU, 521 U.S. 844 (1997) (striking down as vague and overbroad provisions of the
Communications Decency Act prohibiting transmission of obscene or indecent communications to persons under
age 18, or sending patently offensive communications through use of interactive computer service to persons under
age 18, because those provisions impinged on the rights of adults to send and receive indecent materials, with no
showing that less-restrictive protective measures were unavailable or ineffective); Ashcroft v. ACLU, 542 U.S. 656,
(2004) (upholding injunction against enforcement of Child Online Protection Act provision outlawing use of World
Wide Web to transmit material “harmful to minors,” because provision burdened speech lawful between adults, and
government failed to show that filtering or other less-restrictive alternatives were ineffective).
61
See supra note 21 and accompanying text.
62
In the context of the professional media, courts have distinguished between government restraint of publication,
which is virtually never permissible, versus government punishment of speech that proves to be unlawful. Thus, the
state could not enjoin The New York Times from publishing editorial content alleged to be defamatory, but could
enforce a civil judgment compelling the Times to pay damages for libelous content once published. Tinker,
however, makes no distinction between a prior restraint on speech and an after-the-fact penalty – indeed, the
Supreme Court‟s decision is directed not primarily to the students‟ punishment but to the constitutionality of the
armband prohibition itself, a classic prior restraint. Thus, if Tinker permits the prior restraint of speech when
substantial disruption is reasonably forecast, then a literal application of Tinker to online speech suggests that

17

If administrators assert authority to pre-approve or punish students‟ speech about the
school in their off-hours that has the potential of reaching school, commentary on social
networking sites will be the least of the casualties. As we have seen, administrators frequently
invoke “disruption” as a pretext to suppress speech that is merely factual and critical.
Journalism, when practiced at its best, is meant to be provocative; that is, to cause people to talk.
If anecdotal evidence that students talked during school hours about something they read equated
to “disruption,” then even the best journalism – in fact, especially the best journalism – would be
subject to prior restraint and to disciplinary sanction.
Factual – and yes, critical – coverage of school affairs by student journalists has never
been more important. Established media companies are in financial free-fall, slashing jobs and
cutting news space, with education reporting among the unavoidable casualties. Recently in
Minnesota, the story of a police inquiry into a teacher‟s text-message communications with
students was broken by a professional newspaper as a result of reporting by high school
journalists, who took the story to the local newspaper because the principal censored it from the
student paper.63 If students are not free to report frankly on the goings-on in their schools, the
community may never learn that “temporary” trailer classrooms have become permanent, that
restrooms are dangerously unsanitary, or that campuses are prowled by gangs.
VII.

Conclusion

The first generation of online First Amendment law has, regrettably, developed around a
recurring fact pattern: a relatively unsympathetic student plaintiff challenging a relatively
sympathetic principal‟s imposition of discipline for relatively frivolous speech. This fact pattern
represents only a small fraction of the range of students‟ online expression, yet it is setting the
standard for the more substantive speech in which students engage, and will increasingly engage,
on blogs, on website bulletin boards, and on news sites both student and professional.
To the extent that student speech receives any attention in the adult world today, that
attention is overwhelmingly negative, focusing on the handful of admittedly heartbreaking cases
in which young people have abused websites and text-messaging to abuse their peers, at times
with tragic consequences. But there is another student speech story to be told. Student
journalists are high achievers, and study after study confirms the link between student journalism
and improved school retention, higher standardized test scores and greater college readiness.64
When courts speak of the “special characteristics” of the school environment, their focus is on
the captive listeners who may be exposed involuntarily to offensive speech. But it is because
students are legally compelled to stay in school for the best hours of their day that we must
proceed with extreme caution in letting schools punish their expression, let alone extending that

schools could not merely punish online speech that proved to be disruptive, but could prohibit entire categories of
speech from ever coming into existence, on or off campus, based on a forecast of disruption.
63
Jim Hammerand, Christen Hildebrandt & Ben Jackson, Police, District Investigate Teacher, FARIBAULT DAILY
NEWS, Dec. 10, 2008; Chris Ison, Faribault’s Student Journalists Fight Censorship, MINNPOST, Dec. 16, 2008,
available at http://www.minnpost.com/stories/2008/12/16/5303/faribaults_student_journalists_fight_censorship.
64
See JACK DVORAK, NEWSPAPER ASSOCIATION OF AMERICA FOUNDATION, HIGH SCHOOL JOURNALISM MATTERS:
JOURNALISM STUDENT ACADEMIC PERFORMANCE IN THE 21ST CENTURY, (2008), available at
www.naafoundation.org/upload/foundation_pdf/scholatic_report.pdf.

18

disciplinary authority without boundary. And it is because student journalism is such a valuable
outlet for expression that courts cannot be permitted to carelessly improvise new constitutional
standards to catch the Aaron Wisniewskis of the world. The Supreme Court‟s jurisprudence is
clear, and technological innovation has not rendered it obsolete. If the publication of a student‟s
speech does not take place on school grounds, at a school function, or by means of school
resources, then a school cannot punish the speaker without violating her First Amendment rights.
Censorship carries real human costs. While irresponsible accusations posted online can
be hurtful, reputations can be injured as well by disciplinary overreactions. Justin Layshock‟s
principal can readily demonstrate to the next employer that, notwithstanding what the employer
may have read on MySpace, he is not a “big steroid freak” whose hobbies include “smoking big
blunts.” A student will have a much more difficult time clearing his name and pursuing a
successful future if branded guilty of disrupting classes and sent to “alternative school,” as Justin
Layshock originally was before his parents interceded and got his punishment reduced. Federal
courts afford school disciplinary decisions a wide berth of discretion and require only minimal
due process safeguards for a suspension of up to ten days, even though the suspension may leave
a permanent scar.65 The practical difficulty of overturning a disciplinary decision – with the
principal as accuser, judge, jury and executioner – and the lasting consequences of an unjust
conviction, counsel strongly in favor of restraint.
Although it is understandable that courts empathize with school administrators and wish
to afford them leeway to respond rapidly to danger signs, schools are not seeking latitude only in
dangerous situations. Avery Doninger and Justin Layshock manifested no violent tendencies,
and it was known before discipline was imposed that their speech caused no discernable
disorder. Where there is no emergency, we must be governed by Justice Brennan‟s caution:
“Because First Amendment freedoms need breathing space to survive, government may regulate
in the area only with narrow specificity.”66 That is to say, courts are getting it exactly backward:
it is the student speaker, not the school, who is entitled to latitude. If the speaker must approach
the First Amendment line with trepidation, knowing that the first toe to touch the line will be
sliced off, then the speaker will stop a yard short of the boundary, and a good deal of protected
speech will never be said. Unless school administrators are required to respect the breathing
space that Justice Brennan saw was so vital – unless they are required to work within narrow and
specific parameters constraining their power to punish – then valid, protected, non-disruptive
speech will be lost.

65

In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court said public school students facing suspension have a
due process right to be confronted with the charges against them and to present their account of the events, but that –
at least with suspensions of 10 days or less – due process does not require a formal adversarial hearing. “We stop
short of construing the Due Process Clause to require, countrywide, that hearings in connection with short
suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses
supporting the charge, or to call his own witnesses to verify his version of the incident.” Id. at 584.
66
NAACP v. Button, 371 U.S. 415, 433 (1963).

19