Nicoll: University Student Speech and the Internet

397 NICOLL FINAL (DO NOT DELETE) 4/20/2013 2:12 PM

397

University Student Speech and the Internet: A Clusterf***

ELIZABETH NICOLL∗

ABSTRACT

The First Amendment freedom of speech is integral to American identity. Every time it has heard such a case, the Supreme Court reiterates

its assumption that the right is protected and governmental interference with this right is only allowed in a few, narrow circumstances. One of these exceptions exists for speech made in the school setting, where students are subject to stricter limitations on their speech than the general public.

The Internet’s ability to simultaneously be everywhere and nowhere

complicates this discussion. Students, schools, courts, and academics are all unsure of how to deal with online speech that students make from their homes but that then makes its way into the school environment. The few circuits that have heard these cases seem willing to grant school administrations the authority to punish students for such speech, but they

have employed a widely variable collection of tests and have only heard cases involving middle- and high-school students.

A growing body of scholarship calls for the Supreme Court to take a case applying its school speech doctrine to a student’s online speech. This

Note joins that discussion by arguing that the Court should hear a case from the university setting and reiterate that university administrations must make a stronger showing than their high-school counterparts because the justifications for limiting student speech in middle and high schools do not apply in the university context. Further, the Court should allow for consideration of tone in all of these cases because Americans today are

virtually incapable of communicating without sarcasm, and only protecting genuine speech would severely chill all speech.

∗∗∗∗ Candidate for Juris Doctor, New England Law | Boston (2013). B.A., Philosophy and

Physics, cum laude, Phi Beta Kappa, Roanoke College (2010). I would like to thank two

members of Volume 46 without whose unrelenting—sometimes even aggressive—support,

this Note would not exist. You know who you are.


398 New England Law Rev iew v. 47 | 397

INTRODUCTION

“[U]niversities cannot censor or suppress speech, no matter how obnoxious in content, without violating their justification for existence.”1

“For a public university governed by the First Amendment, adopting content-based access limits would almost certainly abridge both free speech and academic freedom.”2

he First Amendment right to free speech is a basic tenet of American

identity.3 Every time the Supreme Court has discussed this right, the Court has articulated it as one to which citizens are entitled, unless

certain exceptions apply.4 This assumption safeguards the freedom of speech and thereby protects the intellectual discourse that is a cornerstone of both democracy and education.5 One such exception is when the circumstances surrounding an instance of speech involve a school setting.6

The Supreme Court has held that speech is “school speech” if it occurs on campus or if, when made, it is reasonably foreseeable that the speech will substantially disrupt the school environment.7 School speech may be limited if it (1) materially interferes with a school’s daily functions, (2) is lewd, (3) bears the imprimatur of the school, or (4) promotes illegal drug use.8

1 Joseph W. Bellacosa, The Regulation of Hate Speech by Academe vs. The Idea of a University: A

Classic Oxymoron?, 67 ST. JOHN’S L. REV. 1, 3 (1993) (quoting Nat Hentoff, ‘Speech Codes’ on the

Campus and Problems of Free Speech, 38 DISSENT 546, 549 (1991)). 2 ROBERT M. O’NEIL, FREE SPEECH IN THE COLLEGE COMMUNITY 70-71 (1997). 3 See U.S. CONST. amend. I; George P. Fletcher, Constitutional Identity, 14 CARDOZO L. REV.

737, 741 (1993) (“[T]he American constitutional spirit is expressed in upholding dissent even

where, and particularly where, it collides with the collective interest in national pride.”). 4 See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[T]he constitutional guarantees

of free speech and free press do not permit a State to forbid or proscribe advocacy of the use

of force or law violation except where such advocacy is directed to inciting or producing

imminent lawless action and is likely to incite or produce such action.”); Schenck v. United

States, 249 U.S. 47, 52 (1919) (“The question . . . is whether the words used are used in such

circumstances and are of such a nature as to create a clear and present danger that they will

bring about the substantive evils that Congress has a right to prevent.”). 5 See Bellacosa, supra note 1, at 1; see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,

637 (1943) (“That they are educating the young for citizenship is reason for scrupulous

protection of Constitutional freedoms of the individual, if we are not to strangle the free mind

at its source . . . .”). 6 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509, 514 (1969) (requiring a

showing of interference with school operations). 7 Id. 8 Morse v. Frederick, 551 U.S. 393, 397 (2007) (allowing regulation of speech that

T


2012 Univers i ty Studen t Speech and the Int ern et 399

Lately the Internet, especially social media, has entered this

discussion.9 This new technology has left students, schools, and academics wondering whether students may be punished for online comments they post from home if the comments later infiltrate the school environment.10 The few circuits that have heard this question seem willing to answer it in

the affirmative, but they have only considered the issue in middle- and high-school settings.11 Federal courts that have heard free speech cases arising from the university setting—but not in the Internet context—accord more protection to this right because the “marketplace of ideas”12 is as integral to academia as it is to democracy.13 Law reviews are saturated with discussions of the potential implications of social networking and the

Internet on the free speech rights of high-school students,14 but discussion of this problem in the university context is virtually nonexistent.15 The Minnesota Supreme Court is currently the only court to have considered the implications of social media on a university student’s sacred right to free speech.16 In Tatro v. University of Minnesota, that court narrowly

encourages drug use); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267-71 (1988)

(upholding the school’s authority to censor high school newspaper); Bethel Sch. Dist. v.

Fraser, 478 U.S. 675, 685 (1986) (ruling that sanctions for lewd language are entirely within a

school’s permissible authority); Tinker, 393 U.S. at 514 (striking down a school’s prohibition of

wearing armbands because the speech did not substantially disrupt or materially interfere

with school activities). 9 See, e.g., Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 207 (3d Cir. 2011) (“It all began

when Justin Layshock used his grandmother’s computer to access a popular social

networking internet web site . . . .”); Emily Gold Waldman, Badmouthing Authority: Hostile

Speech About School Officials and the Limits of School Restrictions, 19 WM. & MARY BILL RTS. J. 591,

591 (2011) (“Recent studies indicate that ninety-three percent of middle-school and high-

school-age students use the Internet, that the vast majority of students with online access use

social networking technologies like e-mail, texting, and Facebook, and that nearly sixty

percent of the students who use social networking discuss school-related topics online.”). 10 See infra Part III. 11 See, e.g., Doninger v. Niehoff, 527 F.3d 41, 44 (2d Cir. 2008); Wisniewski v. Bd. of Educ. of

Weedsport Cent. Sch. Dist., 494 F.3d 34, 35-40 (2d Cir. 2007). 12 Tinker, 393 U.S. at 512 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1966)). 13 See Bellacosa, supra note 1, at 1-3 (“[University-imposed speech codes] clash head-on

with the educational environment of free discourse, openness, and re-exploration of ideas,

even detestable or very unsettling ideas.”). 14 See, e.g., Mary-Rose Papandrea, Student Speech Rights in the Digital Age, 60 FLA. L. REV.

1027, 1028-1102 (2008); James M. Patrick, Comment, The Civility-Police: The Rising Need to

Balance Students’ Rights to Off-Campus Internet Speech Against the School’s Compelling Interests, 79

U. CIN. L. REV. 855, 865 (2010). 15 See infra text accompanying note 16. 16 See Eugene Volokh, Court Upholds Discipline of University Student Based on Speech, Citing

Tinker, VOLOKH CONSPIRACY (July 11, 2011, 6:17 PM), http://volokh.com/2011/07/11/court-

upholds-discipline-of-university-student-based-on-speech-citing-tinker/.



disallowed the university’s infringement on Amanda Beth Tatro’s freedom of speech by applying limitations deemed questionable when applied to high-school students.17

A significant body of scholarship calls for the Supreme Court to hear a

case involving online student speech;18 this Note joins that discussion by suggesting that an online-student-speech case involving a university student would be particularly beneficial.19 By hearing this type of case, the Court could reinforce the free speech rights of young adults by reiterating that interferences constituting a “substantial disruption” on a university

campus must be far more severe than those in a high-school setting.20 This Note further argues that for the law to keep pace with modern social interactions, whatever test the Court ultimately adopts should account for the student’s tone.21

Part I of this Note sets out a cursory overview of basic, free-speech

doctrine. Part II narrows this focus by laying out the Supreme Court’s body of law regarding students’ free speech rights. Part III discusses the various ways in which federal circuit and state courts have applied the Supreme Court’s jurisprudence to online speech by middle- and high-school students made outside the “schoolhouse gate.”22 Part IV explains the

Supreme Court’s protection of First Amendment rights on university campuses. Part V looks at the intersection of Internet speech and the university campus, and offers two interpretations of student rights in that context. Part VI explains why the protective justifications for limiting minor students’ speech in middle and high schools are unconvincing when applied to postsecondary students. Finally, Part VII explains why the

Court’s failure to incorporate tone into any test it adopts in the online-student-speech context could infringe the rights of every modern student.

I. Basic First Amendment Doctrine: Protecting the Right to Free Speech

The Supreme Court has held that when a government entity wants to

ban or punish an expressive act based on the speech’s content, the government must pass strict judicial scrutiny.23 To satisfy strict scrutiny,

17 See Tatro v. Univ. of Minn., 800 N.W.2d 811, 822 (Minn. Ct. App. 2011); see, e.g.,

Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 219 (3d Cir. 2011); J.S. ex rel. Snyder v. Blue

Mountain Sch. Dist., 650 F.3d 915, 920 (3d Cir. 2011), cert. denied, 132 S. Ct. 1097 (2012). 18 See infra note 156. 19 See infra Part IV. 20 See infra Part IV. 21 See infra Part IV. 22 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). 23 JOHN E. NOWAK & RONALD D. ROTUNDA, PRINCIPLES OF CONSTITUTIONAL LAW 613-14

(4th ed. 2010).



the government must demonstrate that “its action is narrowly tailored to a compelling interest.”24 In general, the Court has allowed content-based restrictions on speech only in eight narrow contexts:

The Supreme Court has allowed the punishment of speech based on content if the content is being punished through a clear and narrow regulation that is limited to the proscription of: (1) speech that incites imminent lawless action; (2) speech that is integral to the commission of a crime; (3) speech that triggers an automatic violent response (so-called “fighting words” or the related “hostile audience” problem); (4) “true threats;” (5) obscenity (which the Court narrowly defines to exclude much material that the popular press often describes as pornography); (6) child pornography (a limited category of speech involving photographs and films of young children); (7) certain types of defamatory speech; and (8) certain types of commercial speech (primarily false or misleading speech connected to the sale of a service or product, or offers to engage in illegal activity).25

The Court has allowed content-based restrictions in schools when the content falls into one of the above categories of speech, or when the school

demonstrates that the restriction is narrowly tailored to achieve a significant government interest.26 This seemingly simple framework has developed into its own body of law.27

II. Limitations on Free Speech in the Educational Environment: The

Supreme Court’s Doctrine

A. Free Speech Is Protected in Public Schools, Including Middle and High Schools.

In Tinker v. Des Moines Independent School District, the United States Supreme Court announced that the First Amendment’s freedom-of-speech guarantee applies to public school students, unless that speech conflicts with school officials’ duty to maintain order.28 In December 1965, two high-school students, a middle-school student, and their parents wore black

armbands during the holiday season to protest the Vietnam War.29 The

24 Id. at 614. 25 Id. 26 See, e.g., id. at 738-40, 743-46 (offering instances in which schools successfully banned

freedom of expression by showing that the ban served a legitimate government interest and

was narrowly tailored to further that interest). 27 See infra Part II. 28 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969). 29 Id. at 504. This protest came relatively early in the Vietnam era: Congress passed the

Gulf of Tonkin Resolution, granting President Johnson authority to take any actions he

deemed necessary to defend southeast Asia from the communist Viet Cong, on August 7,



principals at the children’s schools caught wind of this plan and preemptively passed a regulation permitting the suspension of any student who wore and refused to remove an armband at school.30 The students, aware of the new policy, wore their armbands and were suspended until they were willing to remove them.31 The students did not return to school

until after the planned protest period expired.32 Through their fathers, the students brought a claim under Title 42, Section 198333 of the United States Code for violation of their civil rights.34

In an opinion emphasizing the importance of First Amendment

freedom of expression to the fabric of American character, the Tinker Court ruled that the Des Moines School District failed to show that the speech in question––students wearing black armbands to protest the Vietnam War––could have reasonably led to “substantial disruption or material interference with school activities,” or that it actually caused any such interruption.35 The resulting “Tinker test” establishes that, to regulate

student speech, school officials must show that the conduct “materially and substantially interfere[d] with the requirement of appropriate discipline in operation of the school.”36 Three major Supreme Court cases since Tinker provide additional guidance as to the doctrine’s applicability and carve out exceptions to Tinker’s substantial disruption requirement.37

B. Exception for Lewd Speech

The Supreme Court held that the school in Bethel School District No. 403 v. Fraser did not violate a student’s rights by punishing him for a

1964. Battlefield: Vietnam | Timeline, PBS, http://www.pbs.org/battlefield

vietnam/timeline/index.html (last visited Feb. 25, 2013). The first public, organized burning of

a draft card in protest of the Vietnam conflict occurred on October 15, 1965, only months

before the Tinker students wore their armbands. This Day in History, HISTORY,

http://www.history.com/this-day-in-history/first-draft-card-burned (last visited Feb. 25, 2013). 30 Tinker, 393 U.S. at 504. 31 Id. 32 Id. 33 Id. Section 1983 provides a federal cause of action when actors, under color of state law,

violate citizens’ constitutional rights. 42 U.S.C. § 1983 (2006); Westminster Sch. Dist. v.

Mendez, 161 F.2d 774, 778 (9th Cir. 1947) (“We must, therefore, consider the questions: Are the

alleged acts done under color of state law, and do they deprive petitioners of any

constitutional right?”). 34 Tinker, 393 U.S. at 504. 35 Id. at 514. 36 Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). 37 See, e.g., Morse v. Frederick, 551 U.S. 393, 396-97 (2007); Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260, 270 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685

(1986).



nominating speech he gave during a student-government assembly in which he described “his candidate in terms of an elaborate, graphic, and explicit sexual metaphor.”38 The Court explained that the punishment was constitutional because public schools are charged not only with educating students academically, but also with delineating for students the

boundaries of mature, socially acceptable conduct.39 The Court held that the student’s speech interfered with the school’s ability to further those goals.40

C. Exception for Speech Bearing the “Imprimatur” of the School

Hazelwood School District v. Kuhlmeier involved a group of students who wrote articles for the school newspaper about other students’ experiences with pregnancy and divorce.41 Even though the authors used pseudonyms for the subject students, the principal had two concerns: the subjects’ privacy and that the articles’ content would be too mature for some of the school’s younger students.42 The Court distinguished Tinker’s broad

protection by holding that, while schools generally may not infringe upon students’ freedom of speech, they are not obligated to affirmatively support student expression in school-sponsored activities if the audience might interpret the student’s expression to “bear the imprimatur of the school.”43 The Court reasoned that any other holding could force schools to appear to promote “drug or alcohol use, irresponsible sex, or conduct

38 478 U.S. at 678, 685. Justice Brennan included an excerpt of Fraser’s speech in his

concurring opinion:

I know a man who is firm—he's firm in his pants, he's firm in his shirt, his

character is firm—but most . . . of all, his belief in you, the students of

Bethel, is firm.

Jeff Kuhlman is a man who takes his point and pounds it in. If necessary,

he'll take an issue and nail it to the wall. He doesn't attack things in

spurts—he drives hard, pushing and pushing until finally—he succeeds.

Jeff is a man who will go to the very end—even the climax, for each and

every one of you.

So vote for Jeff for A.S.B. vice-president—he'll never come between you

and the best our high school can be.

Id. at 687 (Brennan, J., concurring). 39 Id. at 683-84 (majority opinion); see also Mich. Law Review Assoc., Education and the Law:

State Interests and Individual Rights, 74 MICH. L. REV. 1373, 1374 (1976) (“[T]he [] functions of

the [public] educational system are to inculcate community norms and a minimum scholastic

ability.”). 40 Fraser, 478 U.S. at 683-84. 41 484 U.S. at 262-63. 42 Id. at 263. 43 Id. at 266, 269-73.



otherwise inconsistent with the shared values of a civilized social order,” thus undermining the schools’ efforts to teach civility and morality.44

D. Exception for Speech Promoting Illegal Drug Use

The Supreme Court’s most recent school speech case is Morse v. Frederick.45 In that case, a Juneau, Alaska high school permitted its students to attend the Olympic Torch Relay as the torch passed through the town on its way to the 2002 Winter Games in Salt Lake City, Utah.46 The school principal specifically allowed students and teachers to attend the event “as an approved social event or class trip.”47 A student stood across the street48

from the school as the relay passed, holding a fourteen-foot banner that read, “BONG HiTS 4 JESUS.”49 The principal asked the student to take the banner down; the student refused, and the principal confiscated the banner and suspended the student for ten days.50

On appeal from the Ninth Circuit, the Supreme Court expanded the

Tinker test by holding that a school’s authority to promote its educational goals by limiting student speech is not bound by the school’s literal, geographic campus: “Frederick cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.”51 In the same breath, the Court paternalistically carved out

an exception to Tinker’s substantial-disruption standard by holding that, regardless of the potential interruption posed by student’s speech, or lack thereof,52 schools may restrict student speech encouraging illegal drug use to “safeguard those entrusted to their care” from exposure to such speech.53

E. The State of the Law: Three Exceptions to the Tinker Test

In sum, to regulate a student’s speech, a school must prove that the student’s behavior constituted school speech either because it occurred on campus or because it was reasonably foreseeable that the speech would

44 Id. at 272 (internal quotation marks omitted). 45 551 U.S. 393 (2007). 46 Id. at 397. 47 Id. 48 The student did not, for example, display his message miles away and in the privacy of

his own home, as happens in most Internet cases. See, e.g., Layshock v. Hermitage Sch. Dist.,

650 F.3d 205, 207 (3d Cir. 2011). 49 Morse, 551 U.S. at 397. 50 Id. at 398. 51 Id. at 400-01. 52 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509, 514 (1969). 53 Morse, 551 U.S. at 397.



cause a disruption in the school environment.54 With that element satisfied, the school must next prove that the student’s school speech caused a “substantial disruption or material interference with school activities.”55 If the school cannot show such disruption, it may only regulate the speech upon a showing that the speech (1) is lewd and indecent,56 (2) could

reasonably be misinterpreted to “bear the imprimatur of the school,”57 or (3) encourages illegal drug use.58

III. Lower Courts Try to Sort Out Student Speech on the Internet.

Tinker and its progeny have provided lower courts with a student-

speech analytical framework for decades; but this framework fails to be instructive in the digital age.59 In particular, lower courts have struggled with the preliminary “school speech” determination in cases where the students’ speech occurs at home, only to later make its way into the schoolyard.60 Lower courts have developed two schools of thought for determining whether off-campus Internet speech qualifies as “school

speech.”61 The first focuses on the on-campus/off-campus distinction implicitly established by the Tinker line of cases.62 The second adopts the “reasonably foreseeable to substantially disrupt or materially interfere” standard established in Tinker dicta.63

A. The On-Campus/Off-Campus Distinction

The first approach interprets Tinker, Fraser, and Hazelwood—all cases in which the entirety of the students’ speech occurred within the geographic bounds of the schools—to require the speech to occur on-campus.64 Courts

54 See supra Parts II.A-B. 55 Tinker, 393 U.S. at 508-09, 513-14. 56 Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986). 57 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 269-73 (1988). 58 Morse, 551 U.S. at 397. 59 See, e.g., United States v. Jones, 132 S. Ct. 945, 957 (2012) (Alito, J., concurring) (“This case

requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and

seizures to a 21st-century surveillance technique . . . . Ironically, the Court has chosen to

decide this case based on 18th-century tort law.”); see also United States v. Warshak, 631 F.3d

266, 285 (6th Cir. 2010) (“[T]he Fourth Amendment must keep pace with the inexorable march

of technological progress, or its guarantees will wither and perish.”). 60 See, e.g., Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 219 (3d Cir. 2011); J.S. ex rel.

Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 939 (3d Cir. 2011), cert. denied, 132 S. Ct. 1097

(2012). 61 Patrick, supra note 14, at 865. 62 See infra Part III.A. 63 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 509, 514 (1969); infra Part III.B. 64 See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 269-73 (1988); Bethel Sch. Dist. No.



employing this test emphasize the Supreme Court’s comment in Morse hypothesizing that, if the student in Fraser had given the same innuendo-laced speech in a public place other than a school setting, his speech would have been protected.65

Ten years after Tinker, the Second Circuit decided Thomas v. Board of

Education, Granville Central School District66 and solidified the importance of the on-campus/off-campus speech distinction.67 In Thomas, a group of high-school students set out to create a publication directed to their school community.68 Originally, the magazine was to include sexual satire,

mockeries of multiple aspects of life at the school, and articles on masturbation and prostitution.69 When a teacher noticed a draft article at school, he informed the principal, who in turn informed the students that such material, found at school, could result in their suspension.70 Following that conversation, the students made conscious efforts to keep the publication out of school.71 They typed, printed, and sold the magazine

outside school, even printing a disclaimer on the magazine’s cover, which stated that the publishing students were not responsible if the magazine was found on school property.72 However, a few articles were written on school typewriters, and a teacher allowed the students to clandestinely store some copies of the finished product in his school closet.73

Ultimately, a copy of the magazine was found at school, and the Board

of Education punished Thomas and the other students.74 On hearing the students’ Section 1983 claim,75 the Second Circuit held that the publication constituted off-campus speech and was therefore protected from school-imposed restrictions designed to maintain educational order:

While prior cases involved expression within the school itself, all but an insignificant amount of relevant activity in this case was deliberately designed to take place beyond the schoolhouse gate. Indeed, the appellants diligently labored to ensure that [the magazine] was printed outside the school, and that no copies were sold on school grounds. . . . At best, therefore, any activity

403 v. Fraser, 478 U.S. 675, 685 (1986); Tinker, 393 U.S. at 509, 514. 65 Morse v. Frederick, 551 U.S. 393, 405 (2007). 66 Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1051 (2d Cir. 1979).

67 Id. 68 Id. at 1045. 69 Id. 70 Id. 71 Id. 72 Thomas, 607 F.2d at 1045. 73 Id. at 1050. 74 Id. at 1045-46. 75 42 U.S.C. § 1983 (2006).



within the school itself was [d]e minimis.76

Accordingly, the Second Circuit held that the school officials overstepped their bounds by punishing Thomas and his associates because

the freedom of speech is most emphatically protected in the general community, where all the contested activity occurred.77

Additionally, in Evans v. Bayer, the District Court for the Southern District of Florida considered a high-school senior’s Facebook group

created at home, outside school hours, and entitled “Ms. Sarah Phelps is the worst teacher I’ve ever met.”78 The student designed the group as a forum for students to express their dislike for Ms. Phelps.79 The student never accessed the webpage at school and deleted it after two days—before Ms. Phelps ever saw it.80 The District Court for the Southern District of Florida found that a school could satisfy the test for on-campus speech by

showing that the student brought the off-campus speech on campus herself.81 Here, however, the court found that the school district did not satisfy this test: “Evans’s speech did not occur at a school sponsored activity, nor did she even . . . access the profile at school.”82

B. When It Is Reasonably Foreseeable that Speech Will Disrupt the School Environment

The other school of thought lower courts developed from the Supreme Court’s student-speech doctrine follows Tinker’s secondary proposition: foreseeability.83 Though the facts in that case dealt only with speech that occurred on the school’s physical campus, the Court also indicated that

schools need not wait for a disturbance to occur before taking action.84 Rather, if the school can show “facts which might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities,” the student’s behavior constitutes school speech and the school may regulate it.85 Thus, according to this second philosophy, restricting a student’s speech that occurs in his home is beyond the school’s

regulatory authority, unless the school can demonstrate that the school environment’s substantial disruption was a reasonably foreseeable result of

76 Thomas, 607 F.2d at 1050. 77 Id. 78 Evans v. Bayer, 684 F. Supp. 2d 1365, 1367 (S.D. Fla. 2010). 79 Id. 80 Id. 81 Id. at 1371-72. 82 Id. at 1372. 83 See infra notes 84-103 and accompanying text. 84 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969). 85 Id.



the student’s speech.86 If such a disruption is reasonably foreseeable, the off-campus speech may be treated as on-campus speech.87

The Tinker Court set a high bar for school administrators when it held

that the record included no facts that might have reasonably led administrators to expect a substantial or material disruption.88 This ruling came down despite the school’s showing that the armbands precipitated warnings by students, ridicule of those wearing the armbands, threats by a football player, and at least one “wrecked” math class.89

The Second Circuit has also addressed whether a student’s off-campus

speech could be disciplined to prevent potential disruption of the school’s pedagogical goals.90 In Wisniewski v. Board of Education of Weedsport Central School District, an eighth-grade student created an instant-messenger icon depicting a pistol shooting a nondescript person in the head.91 The icon’s

caption read, “Kill Mr. VanderMolen.”92 The Second Circuit cited the Thomas proposition that students can cause a material interference with school activities from outside the school93 and created a new, two-part test for determining whether a student’s off-campus speech satisfies the Tinker standard.94 First, the court must decide whether it was reasonably foreseeable that the speech would reach campus; and second, whether,

once the speech reached campus, it posed a reasonably foreseeable risk of substantial disruption.95 Applying this new test, the Wisniewski court held that, because the student used a teacher’s name in the icon, and because he made it visible to identify himself to anyone (including classmates) with whom he communicated over instant messenger for three weeks, it was reasonably foreseeable that news of the graphic would make it back to the

school administration.96 As to the second analytical step, the Second Circuit ruled that, once school officials were aware of the icon, its threatening nature made “the risk of substantial disruption . . . not only reasonable, but clear” because similarly severe threats nearly always induce administrative

86 See Doninger v. Niehoff, 527 F.3d 41, 49 (2d Cir. 2008). 87 See id. 88 Tinker, 393 U.S. at 514. 89 Id. at 517 (Black, J., dissenting). 90 See generally Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d

Cir. 2007). 91 Id. at 36. 92 Id. 93 Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1052 n.17 (2d Cir.

1979). 94 See Wisniewski, 494 F.3d at 39-40; Tinker, 393 U.S. at 514. 95 See Wisniewski, 494 F.3d at 39-40. 96 Id. at 39.



action and divert the administration’s attention from other duties.97

The Second Circuit later applied the Wisniewski test to decide Doninger v. Niehoff, a case in which a high-school, student-government officer, upset

by a school social event’s postponement, disseminated a mass e-mail encouraging classmates, parents, and community members to call the superintendent’s office and complain.98 The student initially used a school computer to craft the e-mail.99 That night she used her home computer to access her third-party, publicly visible blog and reposted the e-mail.100 The blog entry introducing the e-mail referenced the “douchebags in [the]

central office” and encouraged readers to further disseminate the e-mail to “piss [the superintendent] off more.”101 The Second Circuit deemed it reasonably foreseeable that the online speech would come on-campus not only because the speech was about school events and directed at members of the school community, but also because Doninger encouraged her audience to contact the school, bringing her off-campus message on

campus.102 For similar reasons, the court held that it was reasonably foreseeable that Doninger’s call for the community to flood the school administration with “a TON of phone calls and emails and such” would materially interfere with the school’s pedagogical agenda.103

C. The Third Circuit Is Particularly Confused

On February 4, 2010, two panels of the Third Circuit announced decisions on identical online-student-speech cases that yielded opposing conclusions.104 The court reheard both cases en banc to correct the disparity, but was still unable to reach a single, legal conclusion: one opinion turned on the on-campus/off-campus distinction,105 while the other

applied the “reasonably foreseeable” test.106

97 Id. at 40. 98 Doninger v. Niehoff, 527 F.3d 41, 44, 50 (2d Cir. 2008). 99 Id. at 45. 100 Id. 101 Id. 102 Id. at 50. 103 Id. at 45, 50-51. 104 Compare J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F. 3d 286, 301 (3d Cir. 2010)

(holding that a student’s suspension for off-campus speech did not violate her constitutional

rights), rev’d en banc, 650 F.3d 915 (3d Cir. 2011), cert. denied, 132 S. Ct. 1097 (2012), with

Layshock v. Hermitage Sch. Dist., 593 F.3d 249, 263 (3d Cir. 2010) (“[W]e need only hold that

Justin’s use of the District’s web site does not constitute entering the school, and that the

District is not empowered to punish his out of school expressive conduct under the

circumstances here.”), rev’d en banc, 650 F.3d 205 (3d Cir. 2011). 105 Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 219 (3d Cir. 2011). 106 J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011), cert. denied,



Justin Layshock used his grandmother’s computer during non-school

hours to create a fake, social-networking profile of his high-school principal that included numerous jokes regarding the principal’s large stature.107 The profile included the principal’s photo, which Layshock copied and pasted from the school’s website.108 En banc, the Third Circuit

held that the school administration did not have the authority to punish Layshock for his webpage because he was not on campus when he created it and the nexus between the school webpage and the school was insufficient to constitute on-campus behavior.109 In short, the Third Circuit held that the school district could not punish Layshock’s online speech because the speech occurred off campus.110

In J.S. ex rel. Snyder v. Blue Mountain School District, the student also used her home computer during non-school hours to create a fake, social-networking profile depicting her principal.111 The webpage was both sexually explicit and profane.112 The school district suspended the student

for the profile.113 Consistent with Layshock, the Third Circuit concluded that the school district did not have the authority to discipline the student for her online speech.114 However, unlike Layshock, the court based its decision on the reasonable foreseeability test: “Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast

substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights.”115

Obviously, the Tinker line of cases fails to adequately instruct lower courts on the online-student-speech issue: even a single circuit deciding

two cases with nearly identical facts cannot identify the appropriate test.116

IV. First Amendment Protection on University Campuses

A. The Landmark Case: Healy v. James

The Supreme Court first considered the degree to which the freedom of

132 S. Ct. 1097 (2012). 107 Layshock, 650 F.3d at 207-08. 108 Id. 109 Id. at 219. 110 Id. 111 Snyder, 650 F.3d at 920. 112 Id. 113 Id. 114 Id. 115 Id. 116 See supra Part III.



speech could be limited on public university campuses in the 1972 case Healy v. James.117 In that case, a group of students at Central Connecticut State College (“CCSC”) sought to organize a local chapter of the national group, Students for a Democratic Society (“SDS”).118 In their application for recognition as an official student group, the students stated that the SDS

would provide a forum of discussion and self-education for students developing an analysis of American society; it would serve as an agency for integrating thought with action so as to bring about constructive changes; and it would endeavor to provide a coordinating body for relating the problems of leftist students with other interested groups on campus and in the community.119

The Student Affairs Committee took no issue with these goals, but was concerned with the degree to which the SDS branch at CCSC would align itself with the SDS national body, which looted, vandalized, and

committed arson on other campuses earlier the same year.120 The students responded that they did not intend to identify with the national organization and would “remain ‘completely independent.’”121 Ultimately, the CCSC President refused to recognize the students as a campus organization out of concern that the group would align itself with the national body and disrupt the school’s educational environment.122 The

students sued CCSC in federal district court for violation of their First Amendment rights of speech and assembly, and the case eventually made its way to the Supreme Court.123

The Court began its discussion by reiterating that students enjoy First

Amendment protections even while at school.124 The Court broadened the applicability of Tinker’s substantial disruption standard, finding that universities may restrict students’ First Amendment rights if such expression would materially interfere with the school’s pedagogical goals.125 However, the Court also implied that the bar for behaviors that may substantially interfere with a collegiate environment is higher than for

those which may disrupt a high school.126 In other words, the Court held

117 408 U.S. 169 (1972). 118 Id. at 170. 119 Id. at 172 (internal quotation marks omitted). 120 Id. at 171-72. 121 Id. at 172. 122 Id. at 179. 123 Healy, 408 U.S. at 177. 124 Id. at 180 (“At the outset we note that state colleges and universities are not enclaves

immune from the sweep of the First Amendment.”). 125 See id. at 190. 126 See id. at 180 (“[T]he precedents of this Court leave no room for the view that, because



that high-school administrators should receive greater deference than university administrators because college students are generally of legal majority and more mature.127

B. The Supreme Court Clarifies: Papish v. Board of Curators of the University of Missouri

A year later, after explicitly citing Tinker,128 then requiring the school to satisfy the general “incitement” standard referenced in Healy, the Supreme Court took another case in which a public university restricted a student’s speech.129 In Papish v. Board of Curators of the University of Missouri, a

university expelled a journalism graduate student for publishing a political cartoon in an off-campus newspaper that depicted police officers raping the Statue of Liberty and the Goddess of Justice.130 The same student also published an article with a title including the word “motherfucker.”131 Under Healy’s stricter iteration of the Tinker standard for university campuses, the Court found the student’s expulsion impermissible for two

reasons: first, because her contributions to the newspaper were not even remotely related to the school; and second, because the university failed to demonstrate that its activities were at all disrupted by the newspaper.132 The Court found that the university expelled the student simply because it deemed her cartoon and article contrary to societal standards of decency.133 While conventional social standards may sufficiently justify limitations on

a high-school student’s speech under Bethel v. Fraser, the Court made clear that university administrations must meet a much higher standard before infringing upon university-students’ rights: “We think Healy makes it clear

of the acknowledged need for order, First Amendment protections should apply with less

force on college campuses than in the community at large.”); Brian J. Steffen, Freedom of the

Private-University Student Press: A Constitutional Proposal, 36 J. MARSHALL L. REV. 139, 144

(2002) (In Healy v. James, the Court “ruled that university officials should be granted less

deference in regulating student speech and press than was granted to secondary-school

officials in Tinker . . . .”); see also ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND

POLICIES 1195 n.173 (4th ed. 2011) (Healy v. James “h[eld] that a college could not exclude a

chapter of the [SDS] because of its views, even if it expressed a philosophy of violence and

destruction. The Court said that the speech was protected unless it met the [general, public

location] test for incitement.”). 127 See sources cited supra note 123. 128 Healy, 408 U.S. at 191. 129 Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 667 (1973). 130 Id. 131 Id. 132 Id. at 670-71. 133 Id. at 670. “[T]he facts set forth in the opinions below show clearly that petitioner was

expelled because of the disapproved content of the newspaper . . . .” Id. (emphasis added).



that the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”134

V. Online Speech Collides with the University Context.

A. Online Speech in the University Context Has Been Protected As Analogous to More Traditional Forms of Speech.

Even Justice Scalia has acknowledged that “the First Amendment protects modern forms of communications.”135 Commentators have recognized since at least the mid-1990s that “[i]f the content of the message would be constitutionally protected in print or spoken form, then it is presumably no less protected on a computer.”136 Even that early in the

Information Age, academics noted that state universities’ authority to regulate online speech was limited by stringent First Amendment standards.137 In Free Speech in the College Community, Robert M. O’Neil notes that the rationale underlying the two exceptions to First Amendment protection do not support punishing online speech.138 First, the “fighting words”139 test established in Chaplinsky v. State of New Hampshire was

grounded not in the words Chaplinsky spoke to the police officer, but rather in the high probability that those words would incite violence between the two men.140 O’Neil opines that this rationale substantially limits the availability of punishment for online speech because, “[b]y definition, protagonists at their keyboards cannot engage in ‘fighting words.’”141 Second, O’Neil asserts that universities would have difficulty

showing the requisite “clear and present danger”142 in cases of Internet postings because “the risks of ‘imminent lawless action’ . . . seem far more remote when communication is by computer than when it comes through

134 Papish, 410 U.S. at 670. 135 District of Columbia v. Heller, 554 U.S. 570, 582 (2008). 136 O’NEIL, supra note 2, at 56. 137 See id. at 59. 138 Id. 139 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). “[F]ighting words [are] those

words which by their very utterance inflict injury or tend to incite an immediate breach of the

peace.” Id. (internal quotation marks omitted). 140 O’NEIL, supra note 2, at 59. 141 Id. 142 Schenck v. United States, 249 U.S. 47, 52 (1919) (“The question in every case is whether

the words used are used in such circumstances and are of such a nature as to create a clear

and present danger that they will bring about the substantive evils that Congress has a right

to prevent.”).



more personal and more proximate means.”143 In short, “when one moves from the street corner to the keyboard and the screen, the special warrant for punishing provocative speech diminishes greatly.”144 Faced with this issue in Tatro v. University of Minnesota, the Minnesota Supreme Court evaded a discussion of university-students’ free speech rights.145

B. Internet Speech Reaches the University Campus—Tatro v. University of Minnesota

In June 2012, the Minnesota Supreme Court upheld the University of Minnesota’s punishment of Amanda Beth Tatro, a mortuary sciences

student, for sarcastic––if insensitive––comments she made on her Facebook page.146 Tatro made the following posts to her Facebook page during November and early December 2009:

Amanda Beth Tatro Gets to play, I mean dissect, Bernie today. Lets see if I can have a lab void of reprimanding and having my scalpel taken away. Perhaps if I just hide it in my sleeve . . . .

Amanda Beth Tatro Is looking forward to Monday’s embalming therapy as well as a rumored opportunity to aspirate. Give me room, lots of aggression to be taken out with a trocar.147

Amanda Beth Tatro Who knew embalming lab was so cathartic! I still want to stab a certain someone in the throat with a trocar though. Hmm . . . perhaps I will spend the evening updating my “Death List # 5” and making friends with the crematory guy. I do know the code . . . .

Amanda Beth Tatro Realized with great sadness that my best friend, Bernie, will no longer be with me as of Friday next week. I wish to accompany him to the retort. Now where will I go or who will I hang with when I need to gather my sanity? Bye, bye Bernie. Lock of hair in my pocket.148

The court managed to sidestep the free-speech issue by deciding Tatro’s case on the ground that she voluntarily enrolled in the mortuary sciences program and, in doing so, agreed to follow the University’s

preexisting professional behavior requirements. The court refused to accept the University’s argument “because the public would not reasonably perceive Tatro’s Facebook posts to bear the imprimatur of the

143 O’NEIL, supra note 2, at 59. 144 Id. 145 See infra Part V.B. 146 Tatro v. Univ. of Minn., 816 N.W.2d 509, 511 (Minn. 2012). 147 “A trocar is a long hollow needle made of stainless steel that is typically inserted into

the body during embalming to aspirate gas and fluids.” Id. at 513 n.2. 148 Id. at 512-13.



University.”149 Accordingly, the Minnesota Supreme Court refused to expand legitimate pedagogical concerns to permit a university to discipline a student for her Facebook posts.150 The court also briefly surveyed the lower federal courts’ struggle to interpret Tinker and its progeny in the Internet context, opting not to apply the entire line of cases: “The driving

force behind the University’s discipline was not that Tatro’s violation of academic program rules created a substantial disruption on campus or within the Mortuary Science Program, but that her Facebook posts violated established program rules that require respect, discretion, and confidentiality in connection with work on human cadavers.”151 Ultimately, the court upheld the University’s sanctions, adopting the rule that a

university may restrict students’ Facebook posts so long as the restrictions are “narrowly tailored and directly related to established professional conduct standards.”152 The Tatro court deftly avoided the larger Tinker discussion, but did acknowledge that Internet student speech is a confused area of the law, and that restrictions on K-12 students should be subject to different parameters than those imposed on university students.153

ANALYSIS

The confused state of First Amendment doctrine is especially problematic given the degree to which the Internet, particularly social-networking sites, pervades modern daily life.154 Among students, administrators, and courts, nobody knows how to handle situations in which these competing interests collide.155 The scholarly discussion is

saturated with calls for the Supreme Court to establish a single, uniform standard for lower courts to apply and proposals for new tests.156 This Note

149 Id. at 518. 150 Id. 151 Id. at 519-20. 152 Tatro, 816 N.W.2d at 521. 153 Id. at 519-20. 154 See Doug Gross, Why Did Colorado Shooting Suspect Avoid Social Media?, CNN.COM (July

23, 2012, 3:30 PM), http://www.cnn.com/2012/07/23/tech/social-media/colorado-suspect-social-

media/index.html (“‘We could ask the same questions about the lack of Web presence that we

could for anyone who isolates themselves. Was he socially isolated in all senses?’ asked Dr.

Pamela Rutledge, director of the Media Psychology Research Center.”); Facebook Statistics,

Stats & Facts for 2011, DIGITALBUZZ BLOG (Jan. 18, 2011),

http://www.digitalbuzzblog.com/facebook-statistics-stats-facts-2011/ [hereinafter Facebook

Statistics] (“71.2% of the U.S. web audience is on Facebook. 48% of 18 to 34 year olds check

Facebook when they wake up, with 28% doing so before even getting out of bed . . . . ”). 155 See supra Part III. 156 See, e.g., Waldman, supra note 9, at 659 (suggesting an analysis guided by the distinction



joins the discussion by arguing that whatever test the Court establishes should consider the tone––like sarcasm––a student employs.157 Additionally, taking a case from the university context, like Tatro, would allow the Court to reiterate speech’s heightened protection in the university context, as compared with the less stringent protection afforded

in the high-school context.158

VI. The Justifications for Limiting Speech in Secondary Settings Do Not

Apply in the University Context.

There are a handful of justifications that courts and states routinely

give for permitting government restrictions on speech when necessary to protect children.159 Whether these justifications are convincing is debatable even in the context of speech limitations on secondary students;160 but they certainly lose ground when considered in the university context, where students have generally reached the age of majority and live independently in an environment that encourages free and open discourse.161

A. Differences Between Children and Adults

The first major rationale for giving minors’ speech less protection than adults’ speech is that there are “inherent cognitive and developmental

between student speech that harasses school officials and that which expresses hostile

opinions); Sandy S. Li, Comment, The Need for a New, Uniform Standard: The Continued Threat to

Internet-Related Student Speech, 26 LOY. L.A. ENT. L. REV. 65, 98-100 (2005) (proposing that

courts decide first whether non-school-sponsored, Internet-related student speech constitutes

a true threat and, if not courts should apply the Tinker test, requiring evidence that the speech

affected a specific individual); Patrick, supra note 14, at 857 (“[T]he on-campus/off-campus

dichotomy should not determine a public school’s ability to regulate internet speech, but

should instead be employed to determine which analysis to use. . . . [I]f internet speech can be

considered on-campus speech, the Supreme Court’s traditional student speech framework

applies, but if the internet speech is considered off-campus, courts should use a balancing test

to weigh the student’s interest in free speech against the school’s interest in regulating that

speech.”); Erin Reeves, Note, The “Scope of a Student”: How to Analyze Student Speech in the Age

of the Internet, 42 GA. L. REV. 1127, 1133 (2007) (“[A] ‘scope of a student’ standard will require a

determination of whether the student’s speech was within the scope of his or her status as a

student.”); Alexander G. Tuneski, Note, Online, Not On Grounds: Protecting Student Internet

Speech, 89 VA. L. REV. 139, 140 (2003) (suggesting a reversion to the bright-line on-campus/off-

campus distinction). 157 See infra Part VII. 158 See infra Part VI. 159 Papandrea, supra note 14, at 1076. 160 Id. (“A close examination of these various theories reveals that none of them can

support broad authority of a school to restrict student speech in the digital media.”). 161 See infra Parts VI.A-E.



differences between children and adults.”162 This argument posits that because juveniles are less emotionally and cognitively developed than adults, schools are justified in protecting them from behavior and speech that may interrupt that development.163 The Supreme Court adopted this rationale in Roper v. Simmons, noting that “juveniles are more vulnerable or

susceptible to negative influences and outside pressures, including peer pressure.”164 This notion parallels the Supreme Court’s dicta in Bethel School District No. 403 v. Fraser, which asserted that schools are charged with providing students not only with an academic education, but also “lessons of civil, mature conduct.”165 These justifications disintegrate when considered in the university context.166

Virtually all college students are eighteen years old by the time they matriculate.167 As the Court recognized in Roper, an eighteenth birthday is not a magical date that bestows upon individuals the maturity to know right from wrong or the boundaries of acceptable behavior.168 However, the

eighteenth birthday “is the point where society draws the line for many purposes between childhood and adulthood.”169 Further, students who live on their own, as opposed to living with their parents and commuting, demonstrate additional maturity—they are able to care for themselves.170 The law deems most college students (typically at least eighteen years old and often living without caretakers) adults, thus rendering inapplicable the

concern for protecting postsecondary students from content that might stunt their development.171

162 Papandrea, supra note 14, at 1080 (citing Ginsberg v. New York, 390 U.S. 629, 641-43

(1968) (permitting New York’s state legislature to conclude that indecent material would harm

childrens’ ethical and moral development, despite the lack of scientific data evidencing such a

harm)); see also KEVIN W. SAUNDERS, SAVING OUR CHILDREN FROM THE FIRST AMENDMENT 261

(2003) (“[T]here are relevant differences between children and adults.”). 163 See Papandrea, supra note 14, at 1081-82. 164 543 U.S. 551, 569 (2005). 165 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682-83 (1986). The Court also noted that

“the First Amendment gives a high school student the classroom right to wear Tinker’s

armband, but not Cohen’s jacket.” Id. at 682 (citing Thomas v. Bd. of Ed., Granville Cent. Sch.

Dist., 607 F.2d 1043, 1057 (2d Cir. 1979) (Newman, J., concurring)). 166 See infra notes 167-171 and accompanying text. 167 See Papandrea, supra note 14, at 1082 (“[R]ecent high school graduates . . . are typically

eighteen or older . . . .”). 168 See id. at 1081 (citing Roper, 543 U.S. at 574). 169 Roper, 543 U.S. at 574. 170 See infra note 175. 171 Papandrea, supra note 14, at 1082 (“[R]ecent high school graduates . . . are typically

eighteen or older and enjoy full constitutional rights . . . .”).



B. Protecting Parents’ Choices

Courts, states, and scholars also justify restrictions on children’s rights, particularly the types of speech to which they are exposed, by arguing that these regulations “empower[] parents to enforce the rules they impose on their children.”172 In at least two cases, the Supreme Court agreed with states that upholding speech restrictions on minors supports parental authority.173 Regardless of this justification’s support for imposing

limitations on children’s right to free speech,174 it has no place in the higher-education context because fears of disrupting a child’s growth no longer apply. University students have typically reached the age of majority.175 The law deems them capable of making their own decisions with regard to the propriety of material in various circumstances and mediums; parents no longer possess the legal right to decide to what

speech their children will be exposed.176 Additionally, students who leave home to attend college often live on their own, so the suggestion that “the custodial relationship between parents and children justifies some restrictions on the rights of minors”177 is moot in this context.178 As young

172 Catherine J. Ross, Anything Goes: Examining the State’s Interest in Protecting Children from

Controversial Speech, 53 VAND. L. REV. 427, 476 (2000). Parental authority over child rearing has

been recognized as a fundamental right protected by the Constitution. Ginsberg v. New York,

390 U.S. 629, 639 (1968) (“[C]onstitutional interpretation has consistently recognized that the

parents’ claim to authority in their own household to direct the rearing of their children is

basic in the structure of our society.”). 173 Papandrea, supra note 14, at 1083-84 n.450. “The Court’s decisions in Pacifica and

Ginsberg upheld censorship laws with the stated purpose of helping parents protect their

children from the undesirable influence of lewd and indecent expression. FCC v. Pacifica

Found., 438 U.S. 726, 749-50 (1978); Ginsberg v. New York, 390 U.S. 629, 639 (1968).” Id. 174 See Bellotti v. Baird, 443 U.S. 622, 634 (1979) (giving three reasons in support of

restricting childrens’ free speech, including parents’ right to decide the propriety of certain

speech for their children). Mary-Rose Papandrea and Catherine J. Ross harshly criticize this

argument, asserting that it supports the same limitations that detract from parents’ right to

raise their children as they see fit. Papandrea, supra note 14, at 1083-84; Ross, supra note 172, at

482 (“Banning speech with the goal of reinforcing parental preferences is the height of irony.

Bans deprive parents of the opportunity to make their own decisions.”). 175 See Fast Facts, NAT’L CTR. FOR EDUC. STATISTICS,

http://nces.ed.gov/fastfacts/display.asp?id=372 (last visited Jan. 31, 2012). The argument that

restrictions on childrens’ speech reinforce the fundamental right of parental authority rests on

the notion that states should craft laws promoting parental authority over children because,

“[u]ntil children reach the age of majority, they are subject to extensive parental control.”

Papandrea, supra note 14, at 1083. 176 Cf. SAUNDERS, supra note 162 at 259 (“The age of majority is eighteen, and . . . a variety

of rights attach at that age . . . .”). 177 Papandrea, supra note 14, at 1083 (citing John H. Garvey, Children and the First

Amendment, 57 TEX. L. REV. 321, 323 (1979) (“[T]he complex of moral rights and obligations



adults, the law trusts university students to think critically about any speech with which they come into contact so as not to be improperly influenced by it.179 Without the law’s expectation that parents supervise their adult children, this rationale does not hold water.180

C. The In Loco Parentis Doctrine

Restrictions on children’s speech rights in public schools are similarly justified by the in loco parentis181 doctrine.182 Under this theory, public schools may restrict students’ rights when necessary to achieve the school’s educational goals,183 because parents have delegated their authority to

school administrators by enrolling their children in public schools.184 As discussed earlier, postsecondary students are adults; in general, they are responsible for themselves.185 Additionally, since the adoption of compulsory-education laws, the Supreme Court has shifted its understanding of the doctrine away from parental-authority delegation and toward the state’s right to act according to its educational goals.186

that characterize the parent-child relationship plays a part in shaping whatever fundamental

rights children have.”)). 178 Cf. Saunders, supra note 162; Ross, supra note 173. 179 See Kelly Sarabyn, The Twenty-Sixth Amendment: Resolving the Federal Circuit Split over

College Students’ First Amendment Rights, 14 TEX. J. C.L. & C.R. 27, 28 (2008). 180 See supra notes 175-176 and accompanying text. 181 “Of, relating to, or acting as a temporary guardian or caretaker of a child, taking on all

or some of the responsibilities of a parent.” BLACK’S LAW DICTIONARY 858 (9th ed. 2009). 182 Papandrea, supra note 14, at 1084-85 (citing 1 WILLIAM BLACKSTONE, COMMENTARIES

*441 (“The parent may also delegate part of his parental authority, during his life, to the tutor

or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power

of the parent committed to his charge, viz. that of restraint and correction, as may be

necessary to answer the purposes for which he is employed.”)). 183 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (allowing

schools to restrict student speech that substantially disrupts the educational environment); 1

BLACKSTONE, supra note 182 (limiting tutor’s delegated authority to that which “may be

necessary to answer the purposes for which he is employed”). 184 Papandrea, supra note 14, at 1084-85. 185 See supra notes 175-176 and accompanying text. There is some discussion as to whether

postsecondary institutions have a special relationship with their students that imposes on the

schools a “duty to prevent them from committing suicide,” Heather E. Moore, Note,

University Liability When Students Commit Suicide: Expanding the Scope of the Special Relationship,

40 IND. L. REV. 423, 424 (2007), but such a relationship is incomparable to that of a custodian or

legal guardian. 186 Ingraham v. Wright, 430 U.S. 651, 662 (1977) (“Although the early cases viewed the

authority of the teacher as deriving from the parents, the concept of parental delegation has

been replaced by the view more consonant with compulsory education laws that the State

itself may impose such [] punishment as is reasonably necessary . . . .”).



Applying this argument to postsecondary students fails because higher education is not compulsory in any state.187 The in loco parentis doctrine does not support limitations on college students’ speech because these students are adults and, as such, parents have no authority to delegate to higher-education institutions.188 Moreover, higher education is not

compulsory, thus diminishing a state’s interest in educating students on the bounds of socially acceptable behavior.189

D. Special Characteristics of the School Environment

One major justification the Court has relied upon in its school-speech

cases is the “special characteristics” of the public-school environment.190 What the Court means by “special characteristics” is not entirely clear, but it seems to include the students’ age, waiver of their free-speech rights, and the diminished value of adolescents’ speech.191 While adolescent students’ speech is arguably of a lower value than that of average adult citizens,192 postsecondary students are adults.193 More importantly, the academic

environment arguably demands the greatest latitude for controversial speech of any setting in the United States.194

Mary-Rose Papandrea asserts that a public school’s best argument for restricting student speech is based on the institution’s particular needs

with regard to maintaining discipline and achieving its basic educational goals.195 Students in public schools are, to some extent, a captive audience for any speech that occurs in the school.196 However, there are no laws compelling students, especially not university students, to frequent each other’s Facebook pages.197 Amanda Beth Tatro made her offensive Facebook comments outside the school campus she voluntarily attended

187 Cf. id. (noting that states’ authority to punish is more in line with compulsory education

laws). 188 See supra notes 181-187 and accompanying text. 189 Id. 190 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (“First

Amendment rights, applied in light of the special characteristics of the school environment,

are available to teachers and students.”). 191 Papandrea, supra note 14, at 1087. 192 Id. at 1077. For example, adolescent students are ineligible to vote. Id. 193 See id. at 1082 (“[R]ecent high school graduates . . . are typically eighteen or older . . . .”). 194 See O’NEIL, supra note 2, at vii. 195 See Papandrea, supra note 14, at 1087-88. 196 Id. at 1088. 197 Cf. id. (“When it comes to digital media, however, it becomes much more difficult to

conclude that students are forced, aside from perhaps peer pressure, to view their classmates’

speech.”).



and on a website that viewers voluntarily accessed.198 Whatever the Court means by “special characteristics,” they do not exist in the context of off-campus Internet speech by university students.199

E. Restricting Student Speech on First Amendment Grounds Undermines the Educational System.

Some scholars have argued that schools have the authority to restrict minors’ rights because minors have an attenuated relationship with the three main principles the free-speech right was designed to protect and, as a result, weaker First Amendment rights.200 These principles are: “(1) the

promotion of democratic self-government; (2) the search for truth in the marketplace of ideas; and (3) the fostering of autonomy and self-fulfillment.”201 These goals aim to establish an open society promoting discourse in all its forms202 and closely parallel the goals of higher education.203 Insofar as these principles promote “the educational environment of free discourse, openness, and re-exploration of ideas, even

detestable or very unsettling ideas,”204 they should be carefully protected in the context of higher education.205

The claim that free speech rights are weak for students because they are ineligible to vote and therefore cannot participate in democracy206 is

moot for college students, who are generally of the age of majority and therefore eligible to vote.207 Judge Posner argues that adolescent students contribute little to the marketplace of ideas,208 but universities are hubs of

198 Tatro v. Univ. of Minn., 816 N.W.2d 509, 520 (Minn. 2012). 199 See supra notes 190-198 and accompanying text. 200 Papandrea, supra note 14, 1076-77. 201 Id. 202 LOUIS MENAND, THE MARKETPLACE OF IDEAS: REFORM AND RESISTANCE IN THE

AMERICAN UNIVERSITY 13 (2010) (“Americans are committed to the principle that the

production of knowledge should be uninhibited and that access to it should be universal. This

is a democratic ideal.”). 203 See Bellacosa, supra note 1, at 1 (“[T]he traditional idea of a university, embodying the

seemingly self-evident proposition that it is the universe in which ideas are freely discussed

and shared.”). 204 Id. at 2. 205 Id. 206 SAUNDERS, supra note 162, at 21 (“The importance of free speech to self-government is

that those who are to make the decisions have all the information and will be able to convince

each other of the wisest course. Children are not among those who make the decisions, so it is

at least questionable how strongly the First Amendment . . . applies to children.”). 207 See Papandrea, supra note 14, at 1082. 208 Nuxoll v. Indian Prairie Sch. Dist. #204, 523 F.3d 668, 671 (7th Cir. 2008).



this marketplace.209 These institutions are the primary tool by which new ideas are created and discussed.210 Limiting free speech is nowhere more devastating to the marketplace of ideas than in the university context.211 Finally, limiting the free speech rights of university students––legal adults––contradicts the First Amendment’s goal to promote citizen autonomy

because it stifles their ability to express themselves and their individuality.212 When Amanda Beth Tatro posted those comments to her Facebook page, she simply expressed her feelings to her friends using a modern, socially acceptable medium.213 In doing so, Tatro fostered her own autonomy and self-fulfillment––a goal the First Amendment undoubtedly promotes.214 Higher education ideals closely parallel those underlying the

First Amendment; placing limitations on free speech rights for university students simultaneously transgresses basic First Amendment tenets and undermines the goals of higher education.215

VII.The Supreme Court Should Allow for Consideration of Whether the

Author Was Serious.

In addition to being overly paternalistic in the university setting,216 the Minnesota Supreme Court inappropriately ignored the sarcastic tone of Tatro’s comments and treated them as genuine.217 America loves satire;218

209 See Healy v. James, 408 U.S. 169, 171 (1972) (“First Amendment rights [are] the most

cherished characteristics long associated with institutions of higher learning.”). 210 See id. at 180-81 (“The college classroom with its surrounding environs is peculiarly the

‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this

Nation’s dedication to safeguarding academic freedom.”). 211 See id. at 180 (”The vigilant protection of constitutional freedoms is nowhere more vital

than in the community of American [postsecondary] schools.”) (quoting Shelton v. Tucker,

364 U.S. 479, 487 (1960)). 212 Cf. Papandrea, supra note 14, at 1079. 213 See id. (“Allowing students to express themselves in the digital media promotes the

development of their individuality.”). 214 Cf. id. 215 See W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 637 (1943) (“That they are educating

the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the

individual, if we are not to strangle the free mind at its source . . . .”); supra Part VI.E. 216 See supra Part VI. 217 Tatro v. Univ. of Minn., 816 N.W.2d 509, 523 (2012) (rejecting Tatro’s claim that she was

merely being satirical). 218 See Kimberlianne Podlas, Funny or No Laughing Matter?: How Television Viewers Interpret

Satires of Legal Themes, 21 SETON HALL J. SPORTS & ENT. L. 289, 290 (2011); Christopher Borelli,

Who Benefits Most from the Colbert Bump?, CHI. TRIB. (July 20, 2011),

http://articles.chicagotribune.com/2011-07-20/entertainment/ct-ent-0720-colbert-as-political-

forc20110720_1_colbert-nation-colbert-report-dutch-bank-dsb (“‘The Colbert Report’ has a

nightly viewership of 1.5 million.”).



and sarcasm permeates modern culture.219 However, “satire’s style of saying one thing but meaning another can confound the underlying message or backfire.”220 Many of today’s interactions involve the use of satire;221 in fact, participating normally in society requires at least an ability to detect and decipher sarcastic remarks.222 Similarly, Facebook and other

social networking sites play a major role in today’s social culture.223 The test for determining whether a student may be punished for her online speech should account for the likelihood that hyperbolic, incendiary comments were not intended honestly before permitting punishment.224 The First Amendment’s Free Speech Clause was designed to promote the democratic and intellectual ideal of an open society in which free

communication prospers.225 To successfully attain this goal, courts must consider the ways in which people communicate.226 Limiting the Free Speech Clause’s protection to genuine, honest speech could have a severe chilling effect on public speech, particularly given that Americans struggle to communicate sans humor.227 Changing one’s speech patterns is

219 Richard Chin, The Science of Sarcasm? Yeah, Right, SCI. & NATURE | SMITHSONIAN MAG.

(Nov. 14, 2011), http://www.smithsonianmag.com/science-nature/The-Science-of-Sarcasm-

Yeah-Right.html. 220 Podlas, supra note 218, at 291. 221 Chin, supra note 219 (“’It’s practically the primary language’ in modern society.”). 222 Id. (“Sarcasm detection is an essential skill if one is going to function in a modern

society dripping with irony. ‘Our culture in particular is permeated with sarcasm,’ says

Katherine Rankin, a neuropsychologist at the University of California at San Francisco.

‘People who don’t understand sarcasm are immediately noticed. They’re not getting it.

They’re not socially adept.’”). 223 See Facebook Statistics, supra note 154. 224 See Christopher Danzig, The University of Michigan Is the Facebook Fun Police, ABOVE THE

LAW (Feb. 8, 2012, 2:29 PM), http://abovethelaw.com/2012/02/the-university-of-minnesota-is-

the-facebook-fun-police/ (“[Tatro] fight[s] to overturn ridiculous penalties levied against her

for a couple of (seriously) harmless jokes made on Facebook.”). 225 CHEMERINSKY, supra note 126, at 926-27 (“Freedom of speech is crucial in a democracy:

Open discussion of candidates is essential for voters to make informed selections in elections .

. . . [Freedom of speech] is essential for the discovery of truth. Justice Oliver Wendell Holmes

invoked the powerful metaphor of the ‘marketplace of ideas’ . . . .”). 226 See, e.g., Danzig, supra note 224 (“I’m more upset about the fact that the University of

Minnesota can’t take a joke.”); infra notes 227-230 and accompanying text. 227 See Chin, supra note 219.

Sarcasm detection is an essential skill if one is going to function in a

modern society dripping with irony. “Our culture in particular is

permeated with sarcasm,” says Katherine Rankin, a neuropsychologist at

the University of California at San Francisco. “People who don’t

understand sarcasm are immediately noticed. They’re not getting it.

They’re not socially adept.”



difficult,228 and if people find themselves unable to express their thoughts or beliefs by using language as they know it, then they will stop expressing themselves altogether.

Allowing for such a consideration would not be entirely novel.229 The

law routinely incorporates social norms as a way to encourage citizen compliance with and understanding of the law.230 For example, the Third Circuit acknowledged the nuances of language presented by the use of sarcasm in J.S. ex rel Snyder v. Blue Mountain School District, noting that “the profile was so outrageous that no one took its content seriously. J.S.

testified that she intended the profile to be a joke between herself and her friends.”231 The Third Circuit recognized that people do not always literally mean what they say and considered this when making its decision.232 Tatro’s Facebook posts were similarly hyperbolic: it is doubtful that an individual seriously plotting to “stab . . . someone in the throat with a trocar”233 or creating a hit list234 would post that information on a site

where hundreds of her “friends and friends of friends”235 could see it.236 A

Id. Cf. J.T. Knight, Comment, Humor and the Law, 1993 WIS. L. REV. 897, 907-08 (“The appeal of

humor is simple but significant: It helps people communicate and enjoy communicating.”). 228 See generally GEORGE BERNARD SHAW, PYGMALION (1912) (following the trials and

tribulations of the character Eliza Doolittle, a Cockney flower girl, as she trains to pass for a

duchess in Victorian England). Who has not interacted with a young person who cannot resist

inappropriately inserting the word “like” into the structure of a sentence? See Carlene Rae

Dater, The “Like” Generation—Poor English Skills—What’s the Solution?, THE MYSTERY STARTS

HERE (Nov. 22, 2009), http://themysterystartshere.com/tag/the-like-generation-poor-english-

skills-whats-the-solution. 229 See infra notes 230-232 and accompanying text. 230 Laura E. Little, Regulating Funny: Humor and the Law, 94 CORNELL L. REV. 1235, 1284

(2009) (“[C]ourts promote predictability by incorporating social norms into their decision

making because citizens can anticipate legal regulations based on shared attitudes about

appropriate behavior.”); see also Georgia v. Randolph, 547 U.S. 103, 113-14 (2006) (importing

social norms into the determination of whether a third-party cohabitant may consent to a

search of the home under the Fourth Amendment over the physically present suspect’s

refusal); United States v. Matlock, 415 U.S. 164, 175-76 (1974) (using social norms regarding

cohabitation to determine whether a third party has authority to give consent to a police

search of a home shared with another). 231 J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 921 (3d Cir. 2011), cert.

denied, 132 S. Ct. 1097 (2012). Studies have shown that “[w]e’re more likely to use sarcasm

with our friends than our enemies.” Chin, supra note 219. 232 See Snyder, 650 F.3d at 921. 233 Tatro v. Univ. of Minn., 816 N.W.2d 509, 512 (Minn. 2012). 234 Id. (“[P]erhaps I will spend the evening updating my ‘Death List #5 . . . . ’”). 235 Id. (internal quotation marks omitted). 236 Cf. United States v. Matlock, 415 U.S. 164, 176 (1974) (“[C]ohabitation out of wedlock

would not seem to be a relationship that one would falsely confess. Respondent and Gayle

Graff were not married, and cohabitation out of wedlock is a crime in the State of Wisconsin.



student’s right to speak freely, especially a university student, should not depend on the sensitivity of those people who have access to her Facebook page.237 Among those hundreds of viewers could be an individual who does not pick up on the sarcasm behind the student’s remarks.238 Alternatively, potential readers could include an individual who

understands that the comments are not meant seriously, but who has a personal vendetta against the author and reports the speech under the cloak of false concern.239 Regardless of what test the Court adopts with regard to online student speech, the test should incorporate consideration of the student’s tone in cases where schools punish a student prior to an actual disruption.240

CONCLUSION

The First Amendment’s Free Speech Clause to protects Americans’ right to express themselves openly and without fear of governmental recourse. The Supreme Court has established that students in middle and high schools maintain this right while on campus, subject to limits relevant to basic pedagogical goals. Similarly, the Court has held that public

institutions of higher learning have the authority to place limits on student speech, but only in much more limited circumstances. Lower courts are struggling to determine how these doctrines apply in the Internet Age because new technology has severely blurred the line between on- and off-campus speech. The Supreme Court should hear one of these cases and establish a precedential test, thus providing guidance to lower courts. It

would be particularly beneficial for the Court to grant certiorari in a case similar to Tatro v. University of Minnesota because it would enable the Court not only to establish the test for online student speech, but also to reiterate that postsecondary institutions must meet a much higher bar to justify regulating speech by adult university students than that by high schoolers. Finally, not accounting for tone in whatever test the Court adopts will

severely chill expression at all levels of education because sarcasm plays

Mrs. Graff’s statements were against her penal interest . . . .”). 237 See Brandon P. Denning & Molly C. Taylor, Morse v. Frederick and the Regulation of

Student Cyberspeech, 35 HASTINGS CONST. L.Q. 835, 885 (2008) (“[A] student’s discipline ought

not turn on whether they [sic] happened to ridicule the most sensitive member of the

faculty.”). 238 Contra J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 921 (3d Cir. 2011)

(“[T]he profile was so outrageous that no one could have taken it[s] [content] seriously. . . .”),

cert. denied, 132 S. Ct. 1097 (2012) . 239 Cf. Denning & Taylor, supra note 237, at 885 (“Mrs. Fulmer . . . was undoubtedly upset

by the website. But her reaction was . . . wholly out of proportion.”). 240 See supra Part VII.



such a key part in American communication today.

Nicoll: University Student Speech and the Internet

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Transcript of Nicoll: University Student Speech and the Internet