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Louisiana State Univ.

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Wednesday, June 9, 2010

Off-Campus Student Speech and Public School Control

The Third Circuit recently reheard two student speech cases, Snyder v. Blue Mountain School District, and Layshock v. Hermitage School District, in order to try to reconcile opposing lower court decisions regarding whether and on what grounds public schools can restrict student speech that occurs off campus.

Julie Hilden comments here. Joseph A. Tomain, University of Louisville Brandeis School of Law, has published Cyberspace is Outside the Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection, in the Drake Law Review (volume 59, 2010), on the issue. Here is the abstract. 

Doctrinal and normative analyses show that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus; one of these cases may be heard en banc. Another case addressing this same issue is currently pending before the Second Circuit. This article provides in-depth analysis on all three cases as well as associated case law

Specifically, the article focuses on one of the four Supreme Court student speech rulings, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). In Fraser, the court held that a school may discipline a student for giving a lewd and indecent speech at a mandatory school assembly. Fraser created an exception to the Court’s seminal student speech case, Tinker v. Des Moines Area School District, 393 U.S. 503 (1969). Tinker required a substantial disruption of the school environment before a school could punish student speech. Fraser did not require a substantial disruption because the student gave a speech filled sexual innuendo before a captive school audience.

Lower courts struggle with whether Fraser applies to offensive online speech. On February 4, 2010, one Third Circuit panel affirmed the district court by holding that Fraser does not apply to online speech. On the same day, a different Third Circuit panel declined to analyze Fraser, even though the district court upheld a school’s decision to discipline a student under Fraser. Instead, that Third Circuit panel upheld the punishment under Tinker. While not creating an express intra-circuit split, these decisions do not resolve the uncertainty as to whether Fraser applies to online student speech. The case pending before the Second Circuit will address Fraser because the certified question is whether “a school may discipline a student for inappropriate comments made off campus on a blog.”

The rule articulated in this article is that Fraser does not apply to offensive online student speech, regardless of whether it is created or accessed on or off-campus. This rule is supported by doctrinal analysis of Fraser and its progeny. The article also provides normative support for this rule under self-realization theory. Self-realization theory is influential in our Supreme Court’s First Amendment jurisprudence and was most recently invoked in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 972 (Jan. 21, 2010) (Stevens, J., dissenting). Because of conflicting lower court decisions, the issue of online student speech rights will likely reach the United States Supreme Court. Through doctrinal and normative analysis, this article illustrates the importance of limiting school jurisdiction over online student speech to protect First Amendment rights of minors and others.


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