Tinker Meets the Cyberbully: A Federal Circuit Conflict Round-Up and Proposed New Standard for Off-Campus Speech
Benjamin A. Holden*
Article

  The full text of this Article may be found here.

28 Fordham Intell. Prop. Media & Ent. L.J. 233
Article by Benjamin A. Holden*

ABSTRACT

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inker v. Des Moines Independent Community School District, the seminal school speech case interpreting the First Amendment to the U.S. Constitution, was decided by the U.S. Supreme Court long before mobile devices and social media upended accepted norms governing how students behave at school. The new reality has brought with it new line-drawing challenges for public schools faced with the warring requirements of school discipline on the one hand, and the First Amendment on the other. The threshold unanswered question this Article presents is whether Tinker should give jurisdiction to public schools over student speech which originates off campus. But the more difficult task is this: Assuming Tinker does apply to off-campus speech, what legal test ought to govern, in light of the patchwork of inconsistent rules the federal courts employ. Building toward a novel theory to answer this question, this Article first summarizes the precedents delineating speech rights of students at public schools; then outlines the federal circuit conflict arising out of the off-campus student speech cases in the absence of Supreme Court guidance; and finally, proposes a new rule for when and how Tinker should be extended to off-campus speech, including cyberbullying.

*Teaching Assistant Professor specializing in media law at the College of Media, University of Illinois at Urbana-Champaign. He was previously director of the Donald W. Reynolds National Center for Courts & Media at the National Judicial College in Reno, Nevada. He practiced at the San Francisco media law firm Cooper, White & Cooper and is a former newspaper reporter for the Wall Street Journal.