Locating the Mislaid Gate: Revitalizing Tinker by Repairing Judicial Overgeneralizations of Technologically Enabled Student Speech

I. INTRODUCTION Many know him as the "Star Wars Kid," a pop Internet icon of memetic proportions. His fifteen minutes of fame began when his two-minute long, self-produced action video was uploaded to Kazaa, a popular peer-to-peer file-sharing network. It is one of the most cringe-worthy, carefree displays of geekiness ever caught on film; presumably deprived of his lightsaber by the wily Sith, the heavyset "Star Wars Kid" improvises, twirling a golf ball retriever with reckless abandon. Fellow Star Wars fans felt an immediate kinship with the nameless teenager and, armed with high-tech tools of their own, brought his makeshift lightsaber to life. Portraying the "Star Wars Kid" dueling enemies and deflecting blaster fire, edited versions of the original video took the Web by storm.1 Eventually, fans tracked down the Star Wars Kid and bestowed on him over $4000 in presents for the unexpected moment of camaraderie and delight he brought into their lives.2 There was only one problem: in 2003, when Quebecois high school student Ghyslain Raza recorded his martial golf ball retriever prowess, he had no intention of publishing the video locally, let alone to the whole world. Three of his classmates found the video and posted it to the Internet in an act some would describe as "cyber-bullying,"3 and not everyone responded with kind words for the portly, would-be Jedi. Ghyslain's parents filed a lawsuit against the parents of his classmates, seeking recompense for their son's humiliation.4 Ghyslain's story is rife with interesting legal issues, ranging from privacy5 to defamation6 to copyright and beyond. Though his epic adventure ended in the courtroom, it started in the classroom. What if that classroom had been in the United States? Would Ghyslain's tormentors have been disciplined? Could they have been disciplined? Would it matter if they used school computers to upload the video, or if otiier students used school computers to watch the video? What if the video was recorded, uploaded, and viewed away from campus, but everyone involved shared a common homeroom? What if Ghyslain himself had posted the video online, but his classmates posted disparaging comments in reply? Student expression has never been a simple concern, and the information age is changing the landscape, blurring the black-letter law of past decades, and challenging administrators and policy-makers to contemplate the particulars of technology in tandem with applicable legal principles. In 1969, when the Supreme Court held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,"7 there could not have been any serious doubt as to the whereabouts of that gate-or the whereabouts of a given student in relation to it. In Tinker v. Des Moines Independent Community School District, the Court held that, when on campus, student expression remained protected so long as it did not "materially and substantially"8 disrupt the educational process. This did not shield off-campus speech from the reach of school discipline, because schools could still potentially discipline constitutionally unprotected speech such as off-campus "fighting words."9 Rather, it established that, on campus, even facially protected speech could be limited by the compelling state interest of effective public education. As students adopt email, Web sites, cell phones, and instant messaging software to facilitate personal expression, however, they are increasingly able to affect others at a distance, blurring the line between on- and off-campus speech. This "telepresence"10 creates significant difficulties for a jurisprudence of student expression that draws distinctions based on whedier a student is at school,11 at a school-sanctioned event,12 or might reasonably be viewed as acting under the school's imprimatur.13 Decisions reflexively employing the Tinker analysis without addressing its relevance compound this difficulty. …