More Connection, Less Protection? Off-Campus Speech with On-Campus Impact

INTRODUCTION The same scenarios come up time and time again in student free speech cases. A student spreads rumors about fellow students on his own website. School authorities find out about the website and intervene. (1) A group of students publishes an "underground" newspaper and distributes it on campus. School authorities see the newspaper and suspend the student. (2) A student creates a website threatening or mocking the school principal. Word spreads, the principal finds out, and he suspends the student. (3) A student writes a disturbing poem. It makes its way to school and authorities suspend the student for fear of violence. (4) Sometimes courts uphold the suspensions. Other times, courts hold that schools have impermissibly trampled on student free speech rights. The cases all involve student speech that originates off campus, but then finds its way to campus either through technology, word of mouth, or a third party. While the Supreme Court has set out relatively clear guidelines to govern student free speech on public school campuses, uncertainty about that precedent's applicability to these scenarios has caused confusion. School administrators are caught in the middle. (5) They are charged with ensuring order and discipline, inculcating values, and protecting the safety and welfare of children. Yet, schools must also refrain from infringing on the free speech rights of students--rights that the students famously do not shed at the schoolhouse gate. (6) As if that task were not difficult enough already, the rapid change of technology that allows students to communicate instantly, on and off campus, has compounded the problem. The rapid change in communication technology did not simply plateau with the advent of the Internet and email. Rather, in recent years the forms of electronic communication have multiplied, with instant messaging, text messaging, MySpace, Facebook, blogs, YouTube, Twitter, and many more technologies. (7) These allow students to reach each other more and more. They also multiply the number of ways that students can bully, harass, taunt, and slander each other. (8) Cyberbullying--bullying through websites, email, and other forms of electronic communication--has become a widespread problem, with as many as seventy-five percent of teenage students reporting having been bullied online. (9) Teachers and administrators have become targets as well. (10) While some of these forms of student expression may originate off campus, they can eventually have a great impact on the campus environment, sometimes without ever being accessed from school. The disruption caused by such students can wreak havoc on individuals at school (11) and the entire school environment, as though the words were uttered in the classroom. Yet schools are commanded to deal with such disruptive students in an appropriate way, even when those students decline to act appropriately themselves. On the other hand, school administrators have been known to overreach and overreact to squelch undesirable student speech, often infringing on student free speech rights. (12) In a post-Columbine world, schools are especially sensitive to possible threats to student safety. (13) While the Internet may offer students a new outlet for expression, with the potential to reach wide audiences, it is also a place where school administrators may seek out and punish what they find to be inappropriate behavior. In the 1960s, overreaching by administrators was a threat to student expression via "underground newspapers." (14) Now it has become a threat to all student expression via electronic media. (15) When students are outside of school, they are normally governed by the general laws that govern citizens of all ages. (16) This includes speech. When students choose to express themselves in school, however, their rights are slightly circumscribed, governed by the familiar Supreme Court trilogy of Tinker v. …