Student Speech and the First Amendment: A Comprehensive Approach

Can a school discipline a student for creating a vulgar parody profile of the school principal or another student on the website MySpace? Can it preclude a student from wearing at school a T-shirt that reads, “Homosexuality is shameful”? These are some of the difficult issues raised when students’ First Amendment rights clash with schools’ operational needs and custodial responsibilities. The Supreme Court has addressed students’ First Amendment speech rights on several occasions, most recently in Morse v. Frederick. Lower courts, however, have had great difficulty applying these precedents, particularly when the speech involves the Internet or other new media. For example, two courts of appeals from the same circuit reached different decisions in Internet-related student speech cases on very similar facts. Consequently, student speech cases are among the most commonly litigated cases under the First Amendment, dwarfing the number of cases dealing with “obscenity, indecency, incitement to or advocacy of unlawful activity, defamation, commercial advertising, [and] campaign finance.” Several commentators have attributed the plethora of lower court cases and inconsistent results to a lack of direction from the Supreme Court. The criticism of Morse in this regard has been especially harsh. Although the Court’s precedents are not unambiguous, this Article suggests that the difficulty in the area results primarily from lower courts’ fundamental misunderstanding of the Supreme Court’s opinions. Rather than critique individual lower court decisions, this Article presents a comprehensive approach to student speech cases applicable to both traditional and new media. The Article argues that student speech should be treated differently depending upon whether the speech occurs under school supervision. In particular, student speech outside school supervision should receive the same First Amendment protection accorded non-students in parallel settings. Student speech under school supervision may be disciplined if it is lewd, advocates illegal action, can be deemed school-sponsored speech, or can reasonably be predicted to cause a substantial disruption to the school’s activities. Moreover, school officials’ disciplinary decisions regarding on-campus student speech should be given great deference, particularly if not viewpoint-based. Part I of this Article reviews the Supreme Court’s student speech cases and the general interpretation of those cases by lower courts. Part II.A reviews the special characteristics of the school environment that necessitate special First Amendment rules. Part II.B then explains why off-campus student speech should receive full First Amendment protection, provides case support for that conclusion, and addresses the special cases of student threats and cyberbullying that arise off campus. Part II.C describes the proper approach to on-campus student speech cases. The Supreme Court cases, all involving on-campus speech, necessarily control. While this Part does not present a unique standard for evaluating on-campus speech, it enumerates some factors that courts should consider when applying that standard, guidance that is missing from most decisions in the area. Part II concludes with a section suggesting how to distinguish on-campus from off-campus student speech in cases involving new media. Finally, Part III illustrates application of this Article’s approach by reviewing a few fact patterns of recent cases