Friday, November 17, 2017
Mark Strasser, Capital University Law School, has published Tinker Remorse: On Threats, Boobies, Bullying, and Parodies at 15 First Amendment Law Review 1 (2016). Here is the abstract.
While students in school have free speech rights, those rights are not absolute. In a series of cases, the Court has modified the students’ rights jurisprudence in ways that do not make it clearer but, instead, more obscure and more difficult to apply. The circuit courts have tried to take account of the Court’s changing views and have come up with very different and sometimes incompatible ways to apply the doctrine. Until the United States Supreme Court offers a coherent analysis of the existing jurisprudence that offers guidance on several issues on which there is a split, lower courts will continue to offer increasingly incompatible interpretations of the jurisprudence — they will issue decisions that are increasingly at odds with each other and which, considered together, will increasingly undermine good public policy and the perception that the law treats individuals fairly and consistently.
The full text is not available from SSRN.