Friday, April 26, 2013
Steve Varel, Northern Illinois University College of Law, is publishing Limits on School Disciplinary Authority over Online Student Speech in volume 33 of the Northern Illinois University Law Review (2013). Here is the abstract.
When, if ever, can a public secondary school in the United States legally discipline a student for the content of a personal website, a Facebook post, a text message, or an email that the student created or transmitted from an off-campus location? The U.S. Supreme Court has never addressed the issue, and the lower courts have split on it, providing a number of different answers to the question. In answering this question, this Comment distinguishes between two kinds of off-campus internet speech: (1) threats or incitements to violence that are never protected by the First Amendment in any context (“true threats”), and (2) other kinds of speech that the First Amendment would protect if the speaker were an adult in a public forum. This Comment argues that there should be limits on school disciplinary authority over both of these kinds of speech. Threats or incitements to violence serious enough to fall outside the scope of constitutional protection may always subject a speaker to criminal punishment. Therefore, this Comment argues that students should not additionally be subject to school discipline for such unprotected speech unless the speech has some connection (a “sufficient nexus”) to the school. This rule has the advantage of allowing schools to discipline students for threats related to the school while also preventing school authority from a limitless extension into matters so unrelated to the school that they should only be handled by authorities. In contrast to its position on unprotected “true threats,” this Comment argues that schools should never be allowed to discipline students for off-campus internet speech that would be protected by the First Amendment if it occurred outside the school context. In cases involving speech that occurred at school, the U.S. Supreme Court has stated, in Tinker v. Des Moines Independent Community School District and its progeny, that schools may discipline students for speech that causes “substantial disruption” to school activities. But this Comment argues that, since Tinker and its progeny were designed specifically for the school setting, the school speech rules articulated in Tinker and its progeny should never be applied to off-campus speech. Although others have made that argument, this Comment goes further by attempting to clearly define when speech occurs on campus and when it occurs off campus. It argues that speech that is originally created or transmitted off campus may only be considered on-campus speech if it is intentionally (re)communicated by the student while he or she is on campus. It further argues that the Spence v. Washington test for communicative conduct should be used to decide if internet speech was intentionally communicated on campus. This Comment concludes with a discussion of how the rule it proposes should apply in specific situations that schools are likely to face in the future.
Download the full text of the article from SSRN at the link.