As of now, the 1969 Supreme Court decision of Tinker v. Des Moines Indep. Sch. Dist., continues to govern cases regarding speech in the public schools, a full forty-three years after it was decided, and long after the advent of the Internet. In this column, I’ll argue that it’s time for an update by the High Court in this area of law.
Of course, there are still cases where Tinker’s precedent is appropriate and sufficient, including one that I wrote about in a recent column here on Justia’s Verdict. But if a case were to arise that exclusively involved students’ off-campus Internet use, Tinker’s precedent alone might prove insufficient. In that scenario, the Court ought to take the case, and make some new First Amendment law.
In this column, I’ll discuss a recent Missouri case that falls into this area of school-speech law, but is unlikely to be taken up by the Supreme Court. Then, I’ll discuss the kind of school speech case that might actually tempt the Court to grant certiorari in the future.
The Facts of the Missouri Case
The events that led to the Missouri case began when Steven and Sean Wilson, twin brothers who were juniors at Lee’s Summit North High School, created a website called NorthPress, which hosted the brothers’ blog, for the purpose, the brothers say, to discuss, satirize, and “vent” about the school.
Unfortunately, the venting took an ugly form: The brothers posted racist messages, messages mocking black students, and sexually explicit and degrading comments about particular female classmates whom the brothers named on the blog. Soon, a third student added another racist post to the blog. And all the posts on NorthPress, the court noted, included “offensive and derogatory language.”
One of the brothers had used a school computer to upload the files necessary to create NorthPress. (Later, some person or persons also used the school’s computers to access NorthPress six times, but that person or persons could not be identified by school officials.)
NorthPress was not password-protected, but it also could not be found by a Google search, due to its Dutch domain name. To access it, one had to know the domain name. The Wilsons say that they gave the domain name to only five or six friends, but apparently, word of the domain name quickly spread among the members of the student body nonetheless.
The result, according to the school district’s witnesses, was substantial disruption at the school, as the Tinker test requires. More specifically, according to the school district, students were distracted and upset by the blog, to the point that two of the school’s teachers described the day when the domain name was disseminated to be the most “disrupted” day of their entire teaching careers. Local media arrived on campus, and parents contacted the school with worries about safety, bullying, and discrimination.
Each Wilson brother received a 180-day suspension from school as a result. Before the punishment was imposed, however, the brothers received a hearing, an appeal, and a second hearing. Moreover, they were allowed to attend another school while suspended. But they challenged the suspension, contending that the other school’s offerings were insufficient —for example, it lacked honors classes.
Before the U.S. District Court, the brothers successfully moved for a preliminary injunction, which the judge granted, on the premise that the brothers might prevail on First Amendment grounds.
But the school district then appealed—and convinced the Eighth Circuit panel to vacate the preliminary injunction. The Eighth Circuit panel held that under Tinker’s standard, speech in public schools is not First-Amendment-protected if it materially disrupts classwork or involves substantial disorder or invasion of the rights of others, and it also held that that had been the case with respect to the Wilsons’ speech.
It was also significant to the Eighth Circuit panel that the speech by the Wilsons was found to be “targeted at” the school, a factor that other courts had also previously found to be significant in invoking Tinker’s test.
Interestingly, the Eighth Circuit panel also noted that it had cyber-bullying and its potentially tragic consequences in mind, writing that “The specter of cyber-bullying hangs over this case,” and noting that the repercussions of such bullying are “serious and sometimes tragic.”
Here, I believe it was appropriate for the panel to recognize the pain and sometimes suicide that can arise from such bullying. The stakes here are the highest they can be – potentially life-or-death – and the panel was right, I think, to acknowledge that.
Why the Supreme Court Likely Won’t Take a Case Like the Missouri One, and What Kind of School Speech Case It Might Take Instead
A complicating factor, in the Wilsons’ case, is the presence of that third student, whose racist post may—it seems, from the Eighth Circuit panel’s opinion—have caused the lion’s share of the disruption at the school. The Supreme Court may well decline to take a case like this one, where the person who is arguably the primary malefactor in the underlying incidents that led to the case is apparently not even a party to the litigation.
I also believe that the Supreme Court won’t take a school-speech case like the Missouri one because it is too easy. Most importantly, the Wilsons’ use of school computers provides a clear basis for the school’s imposition of its authority.
Other cases will surely pose more difficult and subtle questions when it comes to the clash between schools’ authority over their students and students’ First Amendment rights. There, relevant factors in courts’ analyses may include, among others, (1) whether the speech at issue occurs off school property; (2) whether the speech at issue occurs after school hours; (3) whether the student at issue is representing the school, as he or she would be on team road trips and the like; and so on
Ideally, the test case chosen would be one of the most difficult that the Court could face: The scenario of a student who is on his or her home computer during the weekend, accessing Facebook or another similar site, to say things to, or about, fellow students that if they had been said out loud in school during the school day, would clearly be cause for school punishment—detention, suspension, or even expulsion.
In that situation, with no nexus at all to the school except the subject matter of the communications and/or the identity of the listeners, the Court might be hard-pressed to find a reason to allow the author or authors of the communications to be punished if some other student has happened to hear about the communications, and report them to the administration. The key question here is whether Facebook becomes, in effect, an extension of a school hallway when the school and/or its students are being discussed there.
An alternative test would, instead, only allow students to be punished if they themselves had a role in those previously private or quasi-private communications’ becoming public – as the Wilson brothers, in the Missouri case that I discussed above, seemingly did, when they distributed their domain name to others at their school.
When it comes to students’ First Amendment rights, Facebook and similar sites are, in a way, something truly new under the sun.
In the past, if students wanted to communicate secretly about classmates, they did it through a passed note, or a whisper—while taking the risk of a teacher’s intervening. And, they were only able to communicate small bits of information that way. Or, they did it through a gossip session at someone’s home, in the evening or on the weekend, where nothing said was written down or recorded.
Now, though, things are different. Facebook and similar sites have created a middle ground of quasi-private communications. Under these circumstances, the larger the number of people who know a secret, the more likely it is that it will become public knowledge. Thus, student Facebook users should either be wary of expanding their circle too far, or vow to never post anything that they would not want everyone they know to see—even school authorities.