by Avery Medjuck1
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,40 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,55 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/.
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).
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.
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.
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.