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The Trouble with Tinker: An Examination of Student Free Speech Rights in the Digital Age
Allison N. Sweeney*
Note

The full text of this Note may be found here.

29 Fordham Intell. Prop. Media &Ent. L.J. 359 (2019).

Note by Allison N. Sweeney

 

ABSTRACT

 

[T]

he boundaries of the schoolyard were once clearly delineated by the physical grounds of the school. In those days, it was relatively easy to determine what sort of student behavior fell within an educator’s purview, and what lay beyond the school’s control. Technological developments have all but erased these confines and extended the boundaries of the school environment somewhat infinitely, as the internet and social media allow students to interact seemingly everywhere and at all times. As these physical boundaries of the schoolyard have disappeared, so too has the certainty with which an educator might supervise a student’s behavior.

 

Because smartphones, tablets, and computers abound, the ways in which students are able to communicate have changed dramatically in the new millennium, but the law governing the free speech rights of students in American public schools has not kept pace. Current law allows educators to punish student speakers when their in-school speech disrupts the school environment, or is likely to do so—but it is not clear that this same standard should apply to student speech that is posted online away from school, or whether a school should be able to punish off-campus online student speech at all. Because the Supreme Court of the United States has not yet spoken on the issue, and in the absence of a better standard, the courts that have addressed the issue of problematic off-campus online student speech have applied this standard that bases a school’s ability to punish the speaker on the (potential) disruptiveness of his or her speech. This Note explores that which the First Amendment guarantees to adult citizens and the ways in which these guarantees differ for public school students in school, as governed by four major Supreme Court decisions in the past fifty years.

 

This Note then examines the recent cases in which courts have applied this precedent to off-campus online student speech for which the speakers were punished by their schools, and analyzes the ways in which the application of the same standard in these cases has led to drastically different outcomes. Ultimately, this Note contends that educators must be able to supervise student online activities to some extent, and proposes a new standard by which a public school would be able to punish a student for his or her off-campus online speech only if that speech was actually of concern to the school, and if that speech interfered with the rights of others in the school community.

Senior Notes & Articles Editor, Fordham Intellectual Property, Media & Entertainment Law Journal, Volume XXIX; J.D. Candidate, Fordham University School of Law, 2019; B.A., English Literature, Georgetown University, 2016. I would like to thank Professor Olivier Sylvain for his guidance and advice throughout the writing process, and the dedicated editors and staff of the IPLJ for their edits and feedback. I would also like to extend a special thank you to my family and friends for their unconditional love and support in all endeavors