First Amendment Jurisprudence Regarding Off-Campus Student Speech Issues

Open Access
Baker, Michael R
Area of Honors:
Bachelor of Science
Document Type:
Thesis Supervisors:
  • Robert Dwayne Richards, Thesis Supervisor
  • Robert Dwayne Richards, Honors Advisor
  • Martin Halstuk, Faculty Reader
  • first amendment
  • student speech
With the good comes the bad; technology is no different. The Internet has given society wondrous advancements such as e-commerce, social networking, and instant access to volumes of information; that’s the “good.” The “bad” comes in many forms, one of which is wreaking havoc on school-age students nationwide: cyberbullying. Teenage students are using avenues such as instant messaging, MySpace, websites and web-blogs to bully other students, some having grave and deadly consequences. To combat this growing problem, state legislators are taking bold moves by instituting new laws that require school districts to implement and enforce anti-cyberbullying policies. However, the legal guidance for constructing these policies is relatively minimal. School districts must use very specific language regarding what conduct may be regulated and, more particularly, the geographical bounds of the school’s authority, so as to not impinge on the students’ First Amendment right to freedom of speech and expression. To ensure the policies will be enforceable in a courtroom, the school districts need to examine the existing jurisprudence regarding school speech issues. First, the ultimate authority created by Supreme Court precedent must be followed; unfortunately, the highest court in our country has only handed down four decisions regarding student speech. These four standards provide the brick and mortar with which school districts should construct the foundation of their anti-bullying policies. However, of the four existing standards, none of them address the issue of off-campus student speech and the extent of school officials’ authority to regulate it. For law governing this aspect of the policies, school districts must turn to decisions handed down from state and federal appellate courts. Various federal circuit appellate courts, namely the second and third circuits on the east coast, have tackled the issue of students being punished for speech created off-campus and outside of school hours. Some courts have maintained the First Amendment protection for off-campus speech, limiting the authority to school or school-sponsored activities. Other courts, though, have established standards that, if met, allow a school principal or district superintendent to suspend or expel students for websites or blogs created from their home computer. These courts have twisted and manipulated the existing Supreme Court precedent to create the seemingly logical and appropriate support for new standards. Hopefully with the increasing number of off-campus student speech cases, the increased awareness of cyberbullying, and a split-decision from the Third Circuit Appellate Court, the Supreme Court will find the need to hand down a ruling on the issue. Until then, school districts must stick to the existing law; they must create policies that can protect students and their need for a safe learning environment, while respecting their right to free expression and not suffocating the creativity which may result from exercising that right.