Contributions

Everywhere at Once: The Tinker Framework and Off-Campus, Online Speech

by Avery Med­juck

On Decem­ber 16th, 1965, thir­teen-year-old Mary Beth Tin­ker and six­teen-year-old Christo­pher Eck­hardt were sus­pend­ed by their Des Moines, Iowa schools for refus­ing to remove black arm­bands they had worn—in vio­la­tion of a school pol­i­cy against wear­ing armbands—to protest the Viet­nam War. After four years of lit­i­ga­tion, the Supreme Court held that the sus­pen­sions vio­lat­ed the stu­dents’ First Amend­ment rights, famous­ly declar­ing that stu­dents do not “shed their con­sti­tu­tion­al rights to free­dom of speech or expres­sion at the school­house gate.”2 Nonethe­less, the Court was clear that the free speech rights of chil­dren in pub­lic schools are not unlim­it­ed, but rather must be weighed against school offi­cials’ need “to pre­scribe and con­trol con­duct in the schools.”3

The Tin­kers’ protest was indis­putably school speech; it took place on cam­pus and was intend­ed to engage the school com­mu­ni­ty.4 But as stu­dent speech is increas­ing­ly com­mu­ni­cat­ed not with an arm­band in the school­yard, but rather with a few clicks of a mouse or swipes on a touch­screen, courts have been asked to deter­mine whether school offi­cials can law­ful­ly reg­u­late off-cam­pus speech that ulti­mate­ly reach­es the school envi­ron­ment. Giv­en the “every­where at once” nature of the Inter­net, courts have strug­gled in their attempts at pre­cise line draw­ing.5 While the Supreme Court has yet to opine on the mat­ter, the door on what was once an open ques­tion is rapid­ly clos­ing. Every cir­cuit court to decide the issue has held that school offi­cials can, in some cir­cum­stances, law­ful­ly pun­ish stu­dents for their off-cam­pus, online speech.6

As many courts have not­ed, the ubiq­ui­ty of elec­tron­ic com­mu­ni­ca­tion tech­nol­o­gy has ren­dered unten­able any pure­ly geo­graph­ic on-cam­pus/off-cam­pus dis­tinc­tion for deter­min­ing the scope of the First Amendment’s pro­tec­tion of stu­dent speech.7 Nonethe­less, this Con­tri­bu­tion will argue that allow­ing school offi­cials to pun­ish online stu­dent speech that was not rea­son­ably intend­ed to reach the school envi­ron­ment (as most of the cir­cuits have) goes too far, func­tion­al­ly empow­er­ing schools to reg­u­late stu­dent speech “no mat­ter where it takes place, when it occurs, or what sub­ject mat­ter it involves.”8

* * * * *

In Tin­ker, the Court laid out a sim­ple test for deter­min­ing the scope of a school’s abil­i­ty to restrict on-cam­pus stu­dent speech: where stu­dent expres­sion might be rea­son­ably antic­i­pat­ed to “sub­stan­tial­ly inter­fere with the work of the school or impinge upon the rights of oth­er stu­dents,” that speech can be pun­ished or restrict­ed by the school.9  Though this test doesn’t allow school admin­is­tra­tors to act based only on vague “appre­hen­sion of dis­tur­bance,” the Tin­ker test is nonethe­less a per­mis­sive stan­dard in sev­er­al regards.10 First, Tin­ker allows for the cen­sure of the type of polit­i­cal speech that the Court has described as “at the core of what the First Amend­ment is designed to pro­tect.”11 Sec­ond, under Tin­ker, schools can engage in view­point dis­crim­i­na­tion, restrict­ing cer­tain per­spec­tives at the expense of oth­ers.12 Third, Tin­ker does not require speech to have caused any actu­al dis­rup­tion before a school offi­cial can act—rather, it allows restric­tions on speech that “might rea­son­ably have led school author­i­ties to fore­cast sub­stan­tial dis­rup­tion.”13 And final­ly, under the Tin­ker approach, courts give broad def­er­ence to the pre­dic­tive judg­ments of school offi­cials, allow­ing their deci­sions to gov­ern “where rea­son­able minds may dif­fer.”14 As a result, whether oth­er­wise-pro­tect­ed stu­dent speech can be law­ful­ly cen­sured often turns on whether the Tin­ker frame­work applies. Sim­ply put, what is pro­tect­ed speech on the street cor­ner, might not be pro­tect­ed in the cafe­te­ria.

When stu­dent expres­sion orig­i­nates on the phys­i­cal premis­es of the school cam­pus, there is no ques­tion that Tin­ker is applic­a­ble. Like­wise, when stu­dent speech occurs away from the school and does not reach cam­pus in any mean­ing­ful way, there is lit­tle doubt that the full strength of the First Amend­ment should apply.15 Where stu­dent speech orig­i­nates off-cam­pus, but ulti­mate­ly affects the school envi­ron­ment in a sub­stan­tial, dis­rup­tive way, the analy­sis becomes more fraught. The Supreme Court has yet to pro­vide sig­nif­i­cant guid­ance, and has at times point­ed­ly avoid­ed the issue. Indeed, in Morse v. Fred­er­ick, the Court was faced with the ques­tion of whether a school prin­ci­pal vio­lat­ed a student’s First Amend­ment rights by sus­pend­ing him for unfurl­ing a ban­ner read­ing “BONG HiTS 4 JESUS” at a school ral­ly across the street from cam­pus.16 Rather than decid­ing, once and for all, that the off-cam­pus nature of the speech in ques­tion brought it out­side the scope of the school’s author­i­ty, the Court held that because the ban­ner was unfurled amongst oth­er stu­dents, dur­ing school hours, at a school-spon­sored event, it wasn’t off-cam­pus at all.17

In the absence of clear Supreme Court guid­ance, the cir­cuits have uni­form­ly held that Tin­ker can be applied to speech orig­i­nat­ing off cam­pus.18 Indeed, the Sec­ond, Fourth, Fifth, Sev­enth, Eighth, and Ninth Cir­cuits have all con­clud­ed that some off-cam­pus speech can be reg­u­lat­ed under the Tin­ker stan­dard.19 In so decid­ing, the courts have often point­ed to the ubiq­ui­tous, “every­where at once” nature of the Inter­net as jus­ti­fi­ca­tion for expand­ing the scope of Tin­ker.20

This rea­son­ing is log­i­cal­ly appeal­ing; why should a Face­book post cre­at­ed while a stu­dent was at home be immu­nized, while the same post—written on a cell phone while the stu­dent sits in the cafeteria—might be sub­ject to dis­ci­pline? Indeed, as ear­ly as 1979 the Sec­ond Cir­cuit, in Thomas v. Board of Edu­ca­tion, had not­ed that it could “envi­sion a case in which a group of stu­dents incites sub­stan­tial dis­rup­tion with­in the school from some remote locale.”21 Con­cur­ring in the judg­ment, Judge New­man not­ed that “[s]chool author­i­ties ought to be accord­ed some lat­i­tude to reg­u­late stu­dent activ­i­ty that affects matter[s] of legit­i­mate con­cern to the school com­mu­ni­ty, and ter­ri­to­ri­al­i­ty is not nec­es­sar­i­ly a use­ful con­cept in deter­min­ing the lim­it of their author­i­ty.”22

Each cir­cuit to decide the issue has required that, before off-cam­pus speech falls with­in the Tin­ker frame­work, it must sat­is­fy some thresh­old stan­dard of con­nec­tiv­i­ty to the school envi­ron­ment.23 The Sec­ond and Eighth Cir­cuits, for instance, have held that, where it is “rea­son­ably fore­see­able” that expres­sion will reach the school com­mu­ni­ty, school admin­is­tra­tors can law­ful­ly restrict it.24 Sim­i­lar­ly, the Fourth Cir­cuit requires that the speech in ques­tion have a “suf­fi­cient­ly strong” “nexus” to the school’s ped­a­gog­i­cal inter­ests.25

These thresh­old stan­dards typ­i­cal­ly lead to sat­is­fy­ing results where the speech at issue exists in the phys­i­cal realm. In Bouch­er v. School Board of Green­field, for instance, the Sev­enth Cir­cuit con­sid­ered whether a stu­dent-penned arti­cle writ­ten in an under­ground news­pa­per that detailed how to hack Green­field High School’s com­put­er sys­tems could be con­sid­ered school speech with­in the Tin­ker frame­work.26 Unsur­pris­ing­ly, the court found that the arti­cle fell with­in the scope of Tin­ker, not­ing that the arti­cle not only was ulti­mate­ly dis­trib­uted on cam­pus, but had specif­i­cal­ly advo­cat­ed on-cam­pus activ­i­ty.27

In Porter v. Ascen­sion Parish School Dis­trict, the Fifth Cir­cuit con­front­ed facts at the oppo­site pole. There, the court con­sid­ered a vio­lent illus­tra­tion that had been drawn by a four­teen-year-old stu­dent, placed in a clos­et, and then—two years after its creation—unwittingly car­ried onto the school cam­pus by the artist’s twelve-year-old younger broth­er.28 Pre­dictably, the court held that the draw­ing (a depic­tion of the school under siege) could not be con­sid­ered school speech, not­ing that the stu­dent “took no action that would increase the chances that his draw­ing would find its way to school,” and that it had arrived on cam­pus by “mere chance.”29 The analy­sis would dif­fer, the court deter­mined, had the draw­ing been “pub­li­cized in a way cer­tain to result in its appear­ance on cam­pus.”30

Exist­ing doc­trine has led to less sat­is­fy­ing results when courts have con­front­ed online speech. In S.J.W. ex rel. Wil­son v. Lee’s Sum­mit School Dis­trict, for instance, the Eighth Cir­cuit eval­u­at­ed a chal­lenge to the sus­pen­sion of two high school broth­ers for the dis­rup­tion caused by a web­site the broth­ers had cre­at­ed.31 The web­site con­tained a blog on which the broth­ers post­ed “a vari­ety of offen­sive and racist com­ments as well as sex­u­al­ly explic­it and degrad­ing com­ments about par­tic­u­lar female class­mates.”32 Nonethe­less, the broth­ers had tak­en evi­dent effort to pre­vent the web­site from mak­ing its way to the school—they reg­is­tered the site at a Dutch domain, pre­vent­ing users from access­ing the page via a Google search, and told only five or six friends about the site.33 Nonethe­less, word about the site spread quick­ly, and came to the atten­tion of admin­is­tra­tors.34 Though the broth­ers had made efforts to lim­it expo­sure to the web­site, the Eighth Cir­cuit held that it was “rea­son­ably fore­see­able that the speech [would] reach the school com­mu­ni­ty,” and was there­fore gov­erned by the Tin­ker frame­work.35

There can be lit­tle doubt that the type of speech that the broth­ers post­ed online was vile. But in most set­tings the First Amend­ment pro­tects speech of even the most heinous nature.36 Tin­ker allows the repres­sion of this sort of speech in order to pro­tect “the spe­cial char­ac­ter­is­tics of the school envi­ron­ment.”37 It does not fol­low, how­ev­er, that chil­dren are at all times enti­tled to a less­er stan­dard of con­sti­tu­tion­al pro­tec­tion for the inci­den­tal rea­son that they are enrolled in pub­lic school.38

* * * * *

The trou­ble with the thresh­old stan­dards of con­nec­tiv­i­ty to the cam­pus that most cir­cuit courts have applied to deter­mine whether off-cam­pus stu­dent speech falls with­in the scope of Tin­ker is that they func­tion­al­ly cap­ture all online stu­dent speech. As Lee’s Sum­mit, for instance, illus­trates, almost any­thing a stu­dent posts online is like­ly to come to the atten­tion of oth­er stu­dents, even where the speak­er takes pre­cau­tions to pre­vent unin­tend­ed access. Any stu­dent speech post­ed to Face­book, Twit­ter, Insta­gram, or even a sim­ple text mes­sage, is rea­son­ably like­ly to make its way to the school grounds. Indeed, the Supreme Court itself has not­ed the dif­fi­cul­ties posed by attempt­ing to lim­it the poten­tial audi­ence of any form of online speech.39 Thus, a thresh­old stan­dard of “rea­son­able fore­see­abil­i­ty” pro­vides only a nom­i­nal lim­it on the pow­er of schools to lim­it off-cam­pus elec­tron­ic speech; almost all online stu­dent speech can be expect­ed to, in one form or anoth­er, reach cam­pus. Thresh­old stan­dards based on the speech in question’s “nexus” to the school sim­i­lar­ly pro­vide scant pro­tec­tion. When stu­dents com­mu­ni­cate online, they often, pre­dictably, do so with oth­er stu­dents, and often speak about mat­ters relat­ed to school.41

In Blue Moun­tain, the court not­ed that a com­ment spo­ken by a stu­dent off-cam­pus, record­ed by a class­mate, and lat­er played for the school’s prin­ci­pal, could not pos­si­bly be con­sid­ered with­in the purview of Tin­ker.42 The stan­dards thus far annun­ci­at­ed by the courts to gov­ern off-cam­pus elec­tron­ic speech, are not, how­ev­er, mean­ing­ful­ly dif­fer­ent from this hypo­thet­i­cal. A stan­dard requir­ing that a stu­dent actu­al­ly intends for her speech to reach cam­pus, would pro­vide an effec­tive lim­it on the poten­tial­ly broad scope of Tin­ker in the online realm, and indeed, at least one judge has sug­gest­ed such a stan­dard. Con­cur­ring in Blue Moun­tain, Judge Smith, joined by four oth­er judges, not­ed that “apply­ing Tin­ker to off-cam­pus speech would cre­ate a prece­dent with poten­tial­ly omi­nous impli­ca­tions.”43 Nonethe­less, the con­cur­rence was clear that the rel­e­vant stan­dard “plain­ly can­not turn on where the speak­er was sit­ting when the speech was orig­i­nal­ly uttered.”44 As a result, the judges not­ed that “speech inten­tion­al­ly direct­ed towards a school is prop­er­ly con­sid­ered on-cam­pus speech.”45

A sur­vey of the cas­es makes clear that this stan­dard could be rea­son­ably and effi­cient­ly applied by courts and school admin­is­tra­tors alike. Often it is sim­ple to deter­mine whether speech was inten­tion­al­ly direct­ed towards the school. In Bell v. Itawam­ba Coun­ty School Board, for exam­ple, a stu­dent post­ed a rap on YouTube that named two high school coach­es, accus­ing them of sex­u­al mis­con­duct against stu­dents and describ­ing vio­lent acts to be car­ried out against them.46 The video was view­able by the pub­lic on YouTube and Face­book; the stu­dent who cre­at­ed the rap stat­ed that he had post­ed it “to increase aware­ness of the sit­u­a­tion.”47 On these facts, the speak­er clear­ly intend­ed for the video to reach the school.

Sim­i­lar­ly, in Doninger v. Niehoff, a high school stu­dent coun­cil mem­ber sent a mass email to stu­dents and par­ents urg­ing them to call the school dis­trict to protest the resched­ul­ing of a planned school event.48 After an out­pour­ing of calls to the dis­trict, the stu­dent cre­at­ed a crude blog post­ing fur­ther urg­ing calls and emails to the dis­trict.49 Here, again, a thresh­old stan­dard mea­sur­ing the speaker’s intent to reach the school envi­ron­ment would clear­ly bring the speech in ques­tion with­in the Tin­ker frame­work.

Burge ex rel. Burge v. Colton School Dis­trict, on the oth­er hand, illus­trates a case in which a student’s online speech was not intend­ed to reach the school envi­ron­ment. There, a mid­dle school stu­dent, upset after receiv­ing a low grade, wrote on his per­son­al Face­book pro­file that his teacher (ref­er­enced by name) “needs to be shot.”50 With­in twen­ty-four hours the stu­dent delet­ed the post, which was only acces­si­ble by online Face­book “friends.”51 Six weeks lat­er, an anony­mous par­ent placed a print­out of the Face­book post in the principal’s mail­box, and the stu­dent was sub­se­quent­ly sus­pend­ed.52 On these facts, the stu­dent clear­ly did not inten­tion­al­ly direct the Face­book post towards the school; thus, under the pro­posed frame­work, the Tin­ker stan­dard ought not apply.53

* * * * *

As at least one court has not­ed, the ques­tion of where speech occurs when the Inter­net is the medi­um bor­ders on the meta­phys­i­cal.54 But as greater and greater amounts of stu­dent speech are com­mu­ni­cat­ed and received online or elec­tron­i­cal­ly, it is pre­cise­ly this ques­tion that courts must con­front with par­tic­u­lar­i­ty. The Tin­ker frame­work is a potent tool that allows school admin­is­tra­tors to pro­scribe, in a man­ner utter­ly for­eign to oth­er areas of the doc­trine, speech at the core of the First Amend­ment. The Inter­net is indeed every­where all the time, on smart­phones, watch­es, lap­tops, and more; it stands to rea­son that schools should be empow­ered to con­trol, in some cas­es, online speech trans­mit­ted from afar towards the school cam­pus. Nonethe­less, courts must take care to observe that the nature of online com­mu­ni­ca­tion ren­ders it like­ly that any online stu­dent speech may find its way onto a cam­pus. Thus, a rule that allows schools to reg­u­late speech with­out regard for the man­i­fest intent of the stu­dent speak­er pos­es the haz­ard of allow­ing schools to restrict speech com­mu­ni­cat­ed any­where, any­time.


Rec­om­mend­ed Cita­tion: Avery Med­juck, Every­where at Once: The Tin­ker Frame­work and Off-Cam­pus, Online Speech, 2018 N.Y.U. Pro­ceed­ings 6, http://proceedings.nyumootcourt.org/2018/02/everywhere-at-once-the-tinker-framework-and-off-campus-online-speech/.

Notes:

1. Avery Med­juck is a 3L at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on one issue pre­sent­ed at the 2017 Seigen­thaler-Suther­land Nation­al First Amend­ment Moot Court Com­pe­ti­tion, pre­sent­ed by the Catholic Uni­ver­si­ty of Amer­i­ca Colum­bus School of Law, and the New­se­um, in Wash­ing­ton, DC. The com­pe­ti­tion prob­lem dealt with whether a pub­lic school could law­ful­ly pun­ish a high school stu­dent for a threat­en­ing Face­book post direct­ed at a trans­gen­der stu­dent. For anoth­er Con­tri­bu­tion root­ed in this com­pe­ti­tion, see Tru­ly Threat­en­ing: Intent Require­ments for First Amend­ment Pro­tec­tion by Ben Lazarus (’18) at http://proceedings.nyumootcourt.org/2017/11/truly-threatening-intent-requirements-for-first-amendment-protection/.
2. Tin­ker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
3. Id. at 507.
4. Id. at 503.
5. J.S. ex rel. Sny­der v. Blue Moun­tain Sch. Dist., 650 F.3d 915, 940 (3d Cir. 2011) (en banc) (Smith, J., con­cur­ring).
6. See, e.g., Bell v. Itawam­ba Cty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015); Wynar v. Dou­glas Cty. Sch. Dist., 728 F.3d 1062 (9th Cir. 2013); S.J.W. ex rel. Wil­son v. Lee’s Sum­mit Sch. Dist., 696 F.3d 771 (8th Cir. 2012); Kowal­s­ki v. Berke­ley Cty. Schs., 652 F.3d 565 (4th Cir. 2011); Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008); The Third Cir­cuit is, nonethe­less, con­sid­er­ably frac­tured on the issue. In Blue Moun­tain, the court was will­ing to assume, with­out decid­ing, that the Tin­ker frame­work applied to a lewd and offen­sive MySpace page that was cre­at­ed on a student’s home com­put­er, but ulti­mate­ly reached the school envi­ron­ment. See 650 F.3d 915, 926 (3d Cir. 2011). Nonethe­less, five judges con­curred in an opin­ion empha­siz­ing that Tin­ker was inap­plic­a­ble on the facts of the case. See id. at 936 (Smith, J., con­cur­ring). In a sep­a­rate en banc deci­sion issued the very same day, the court declined (on near­ly iden­ti­cal facts) to apply Tin­ker, not­ing that allow­ing a school to pun­ish a stu­dent for off-cam­pus speech would cre­ate “an unseem­ly and dan­ger­ous prece­dent.” Layshock ex rel. Layshock v. Her­mitage Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011) (en banc).
7. See, e.g., Bell, 799 F.3d at 392 (“Stu­dents now have the abil­i­ty to dis­sem­i­nate instan­ta­neous­ly and com­mu­ni­cate wide­ly from any loca­tion via the Inter­net. These com­mu­ni­ca­tions, which may ref­er­ence events occur­ring, or to occur, at school, or be about mem­bers of the school com­mu­ni­ty, can like­wise be accessed any­where, by any­one, at any time.”); R.L. v. Cent. York Sch. Dist. 183 F. Supp. 3d 625, 647 (M.D. Pa. 2016) (“Indeed, a bright line dis­tinc­tion between on-cam­pus and off-cam­pus speech in the con­text of Inter­net speech is both anachro­nis­tic and illog­i­cal.”).
8. Blue Moun­tain, 650 F.3d at 939 (Smith, J., con­cur­ring).
9. Tin­ker, 393 U.S. at 509.
10. Id. at 508.
11. Morse v. Fred­er­ick, 551 U.S. 393, 403 (2007) (quot­ing Vir­ginia v. Black, 583 U.S. 343, 365 (2003)).
12. See, e.g., A.M. ex rel. McAl­lum v. Cash, 585 F.3d 214 (5th Cir. 2009) (hold­ing that a school could law­ful­ly pun­ish stu­dents for vio­lat­ing a pol­i­cy against the dis­play of the Con­fed­er­ate flag).
13. Tin­ker, 393 U.S. at 514 (empha­sis added); see also Low­ery v. Euver­ard, 497 F.3d 584, 591–92 (6th Cir. 2007) (“Tin­ker does not require school offi­cials to wait until the horse has left the barn before clos­ing the door.”).
14. Butts v. Dal­las Indep. Sch. Dist., 436 F.2d 728, 731 (5th Cir. 1971).
15. See Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1050 (2d Cir. 1979) (not­ing that when school offi­cials reach beyond the cam­pus into the gen­er­al com­mu­ni­ty, “the free­dom accord­ed expres­sion is at its zenith” and “their actions must be eval­u­at­ed by the prin­ci­ples that bind gov­ern­ment offi­cials in the pub­lic are­na.”).
16. Morse, 551 U.S. at 397.
17. Id. at 401 (“There is some uncer­tain­ty at the out­er bound­aries as to when courts should apply school speech prece­dents, but not on these facts.”) (inter­nal cita­tions omit­ted).
18. But see J.S. ex rel. Sny­der v. Blue Moun­tain Sch. Dist., 650 F.3d 915, 940 (3d Cir. 2011) (en banc) (assum­ing with­out decid­ing that Tin­ker can apply to off-cam­pus speech); Layshock ex rel. Layshock v. Her­mitage Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011) (en banc) (declin­ing to apply Tin­ker to a student’s off-cam­pus speech, while con­ced­ing “that it is now well estab­lished that Tin­ker’s ‘school­house gate’ is not con­struct­ed sole­ly of the bricks and mor­tar sur­round­ing the school yard.”).
19. See, e.g., Bell v. Itawam­ba Cty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015); Wynar v. Dou­glas Cty. Sch. Dist., 728 F.3d 1062 (9th Cir. 2013); S.J.W. ex rel. Wil­son v. Lee’s Sum­mit Sch. Dist., 696 F.3d 771 (8th Cir. 2012); Kowal­s­ki v. Berke­ley Cty. Schs., 652 F.3d 565 (4th Cir. 2011); Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008); Bouch­er v. Bd. of the Sch. Dist. of Green­field, 134 F.3d 821 (7th Cir. 1998).
20. See, e.g., Bell, 799 F.3d at 392 (not­ing that the ubiq­ui­ty of the Inter­net “confound[s] pre­vi­ous­ly delin­eat­ed bound­aries of per­mis­si­ble reg­u­la­tions.”).
21. Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1052 n.17 (2d Cir. 1979) (hold­ing that pub­lic school stu­dents could not be pun­ished for pub­lish­ing and dis­trib­ut­ing a satir­i­cal news­pa­per, sev­er­al copies of which were even­tu­al­ly brought to cam­pus).
22. Id. at 1058 n.13 (New­man, J., con­cur­ring).
23. The Fifth Cir­cuit has declined to adopt a spe­cif­ic thresh­old, though it has not­ed that threats “inten­tion­al­ly direct[ed] at the school com­mu­ni­ty” fall with­in the scope of Tin­ker. Bell, 799 F.3d at 394. Like­wise, when last con­front­ed with the ques­tion, the Ninth Cir­cuit held only that the off-cam­pus speech at issue would sat­is­fy any test yet anun­ci­at­ed. See Wynar, 728 F.3d at 1069 (“Nor do we need to decide whether to incor­po­rate or adopt the thresh­old tests from our sis­ter cir­cuits, as any of these tests could be eas­i­ly sat­is­fied in this cir­cum­stance.”).
24. See Wis­niews­ki v. Weed­sport Cent. Sch. Dist., 494 F.3d 34, 39 (2d Cir. 2007); Lee’s Sum­mit, 696 F.3d at 777.
25. See Kowal­s­ki v. Berke­ley Cty. Schs., 652 F.3d 565, 573 (4th Cir. 2011).
26. See Bouch­er v. Bd. of the Sch. Dist. of Green­field, 134 F.3d 821, 822–23 (7th Cir. 1998).
27. Id. at 829.
28. See Porter v. Ascen­sion Parish Sch. Bd., 393 F.3d 608, 611–12 (5th Cir. 2004).
29. Id. at 615.
30. Id. at 620.
31. See S.J.W. ex rel. Wil­son v. Lee’s Sum­mit Sch. Dist., 696 F.3d 771, 773 (8th Cir. 2012).
32. Id.
33. Id. at 773–74.
34. Id. at 774.
35. Id. at 777.
36. See, e.g., Sny­der v. Phelps, 562 U.S. 443 (2011) (hold­ing that the West­boro Bap­tist Church’s pick­et­ing of a soldier’s funer­al with signs say­ing, “God Hates Fags” and “Thank God For Dead Sol­diers” was pro­tect­ed speech).
37. Tin­ker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
38. See Wynar v. Dou­glas Cty. Sch. Dist., 728 F.3d 1062, 1068 (9th Cir. 2013) (“LaVine def­i­nite­ly did not say that the geo­graph­ic ori­gin of speech doesn’t mat­ter, nor did it say that an individual’s free speech rights are dimin­ished sim­ply by virtue of being a stu­dent.”).
39. See Reno v. ACLU, 521 U.S. 844, 855–56 (1997) (describ­ing the dif­fi­cul­ties of age ver­i­fi­ca­tion on the Inter­net); see also Shen v. Albany Uni­fied Sch. Dist., No. 3:17-cv-02478-JD, 2017 WL 5890089, at *7 (N.D. Cal. Nov. 29, 2017) (“In addi­tion, it is com­mon knowl­edge that lit­tle, if any­thing, post­ed online ever stays a secret for very long, even with the use of pri­va­cy pro­tec­tions.”).
40. See J.S. ex rel. Sny­der v. Blue Moun­tain Sch. Dist., 650 F.3d 915, 931 (3d Cir. 2011) (en banc) (“[Plain­tiff] took spe­cif­ic steps to make the pro­file ‘pri­vate’ so that only her friends could access it. The fact that her friends hap­pen to be Blue Moun­tain Mid­dle School stu­dents is not sur­pris­ing.”).
41. See Doninger v. Niehoff, 527 F.3d 41, 49 (2d Cir. 2008) (not­ing that “stu­dents both on and off cam­pus rou­tine­ly par­tic­i­pate in school affairs, as well as in oth­er expres­sive activ­i­ty unre­lat­ed to the school com­mu­ni­ty, via blog post­ings, instant mes­sag­ing, and oth­er forms of elec­tron­ic com­mu­ni­ca­tion.”).
42. See Blue Moun­tain, at 932–33 (not­ing that First Amend­ment pro­tec­tion “would not be lift­ed if a school offi­cial or … class­mate over­heard the off-cam­pus speech, record­ed it, and played it to the school prin­ci­pal.”).
43. Id. at 939 (Smith, J., con­cur­ring).
44. Id. at 940.
45. Id.
46. See Bell v. Itawam­ba Cty. Sch. Bd., 799 F.3d 379, 383–85 (5th Cir. 2015).
47. Id. at 386.
48. See Doninger v. Niehoff, 527 F.3d 41, 44 (2d Cir. 2008).
49. Id. at 45.
50. Burge ex rel. Burge v. Colton Sch. Dist., 100 F. Supp. 3d 1057, 1060 (D. Or. 2015).
51. Id. at 1060–61.
52. Id.
53. Although the court found that Tin­ker applied, it nonethe­less held that the post “did not have a ‘mate­r­i­al and sub­stan­tial’ impact on either class­room activ­i­ties or admin­is­tra­tive respon­si­bil­i­ties.” Id. at 1062 (quot­ing Tin­ker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969)).
54. See Kowal­s­ki v. Berke­ley Cty. Schls., 652 F.3d 565, 573 (4th Cir. 2011).
55. In 2015, near­ly three-quar­ters of teens report­ed hav­ing access to a smart­phone, while more than half report­ed going online sev­er­al times a day. 71% of teens accessed more than one social net­work­ing site, and a typ­i­cal teen report­ed send­ing and receiv­ing thir­ty text mes­sages a day. See Aman­da Lenhart, Pew Research Ctr., Teens, Social Media & Tech­nol­o­gy Overview 2015 2, 3, 19 (2015), http://assets.pewresearch.org/wp-content/uploads/sites/14/2015/04/PI_TeensandTech_Update2015_0409151.pdf.