Tinker-Ing with Speech Categories: Solving the Off-Campus Student Speech Problem with a Categorical Approach and a Comprehensive Framework

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TABLE OF CONTENTS  INTRODUCTION I. CURRENT LAW AND PROPOSED SOLUTIONS     A. Supreme Court Student Speech Cases        1. Tinker v. Des Moines Independent Community           School District        2. Bethel School District No. 403 v. Fraser        3. Hazelwood School District v. Kuhlmeier        4. Morse v. Frederick     B. Academic Proposals        1. The On-/Off- Dichotomy           a. Objective Intent of the Speaker           b. Additional Intent-Based Approaches           c. Scope of a Student        2. Regulatable vs. Protected Off-Campus Speech           a. Speech that Interferes with the              Rights of Others           b. Speech that Impedes Learning        3. Highlighting the Need for Simplicity        4. Combining Key Elements II. LOWER COURT CASES AND PROPOSED FRAMEWORK     A. Proposed Framework     B. Threatening Speech        1. J.S. ex rel. H.S. v. Bethlehem Area School District        2. Wisniewski ex rel. Wisniewski v. Board of Education           of the Weedsport Central School District        3. LaVine v. Blaine School District     C. Student Speech About Other Students        1. Kowalski v. Berkeley County Schools        2. Emmett v. Kent School District No. 415        3. J.C. ex rel. R.C. v. Beverly Hills Unified School           District     D. Student Speech About Teachers        1. Evans v. Bayer and Fenton v. Stear     E. Student Speech About Administrators        1. Voluntary Competition Exception        2. School Principals        3. Clarifying the On-/Off- Prong Through Speech About           Administrators and School Infrastructure     F. Summary of Proposed Framework III. CRITICISMS     A. Too Restrictive of Student Speech     B. Too Much Power to Administrators     C. Threatening Speech and Fighting Words Are Not        Necessarily "True Threats"     D. Too Protective of Speech About Teachers and        Administrators CONCLUSION 

INTRODUCTION

"You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you." (1) Online messages like this one, which prompted Megan Meier to kill herself in 2006, (2) are shockingly common among adolescent and teen students. (3) Over half have been bullied online, more than one-third have been threatened online, and over fourteen percent have considered or attempted suicide as a result. (4) Off-campus student speech, especially that which occurs online, has become a sharpened tool for bullying, (5) can cause severe and substantial disruptions of the school environment, (6) and can even foreshadow fatal incidents both on and off campus. (7) Yet currently no uniform standard for regulating off-campus speech exists. (8)

Off-campus student speech has been a contested topic since the Supreme Court held in Tinker v. Des Moines Independent Community School District that on-campus student speech may be regulated if it might reasonably cause a substantial disruption of school activities. (9) Since then, lower courts have struggled to apply the Tinker standard to speech that occurs off campus and, since the advent of the Internet, online. (10) The resulting decisions have led to several variations on the Supreme Court's standards. (11) In determining whether the speech can be regulated, lower courts have considered factors such as foreseeability of a substantial school disruption, (12) foreseeability that the speech would reach campus, (13) the actual place of the speech's reception, (14) and the intent of the speaker. (15)

Likewise, legal scholars and law students have suggested myriad tests for determining if off-campus student speech can be regulated. These tests include abandonment of the Tinker test in off-campus speech cases, (16) application of the Tinker test with additional restrictions, (17) various methods of determining the speaker's intended place of dissemination, (18) and frameworks for determining what types of off-campus speech may be regulated under restrictions for on-campus speech. …