Badmouthing Authority: Hostile Speech about School Officials and the Limits of School Restrictions

Whether schools can regulate their students' off-campus speech has emerged as one of the most pressing and thorny legal issues involving student speech rights. 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 ofthe students who use social networking discuss school-related topics online.1 Not surprisingly, the increasing prevalence of digital communication among students has given rise to many new conflicts regarding schools' authority over such speech. As courts continue to chart differing courses in response to such controversies, many commentators have proposed approaches for evaluating schools' jurisdiction over students' off-campus speech.2 So far, however, there has been little critical focus on the fact that a large number of these cases are arising in one very specific category: student speech that is hostile toward school officials. Indeed, that has been the context of all of the student Internet speech cases that have reached the circuit court level so far.3 Of course, student speech that attacks or disparages school officials is not anew phenomenon. Even apart from the Internet, student speech that is hostile toward school officials can implicate several ofthe most profound and competing concerns underlying student speech jurisprudence. On the one hand, speech that attacks a teacher or administrator has the potential - depending on its content and tone - to severely upset its target, with spillover effects on the larger school community. Such a result directly implicates the Supreme Court's primary justification for reducing students' First Amendment rights: avoiding substantial disruptions to the learning environment. On the other hand, giving school officials broad power to censor speech that personally attacks them raises particular questions about the suppression of student dissent. This, too, is a central concern of student speech jurisprudence. As the Supreme Court stated in its very first student speech case, Tinker v. Des Moines Independent County School District, "state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students."4 That much of this speech is now occurring on the Internet heightens the considerations on both sides. Through the Internet, students are able to engage in particularly effective verbal attacks on school officials, both in substance and in ease and speed of delivery.5 Psychological research suggests, moreover, that such attacks may be harsher in tone than those expressed through more conventional means, given the potential for dis-inhibition raised by the Internet.6 Yet restricting such speech raises the specter of limitless school authority, to the point where students cannot express frustration or disagreement with what is happening at school even when they use their own computer at home. How, then, are schools and courts navigating this balance - and how should they? What are the limitations on a school district's ability to restrict hostile student speech about school officials, both on- and off-campus? Conversely, what are the legal and educational risks of a school district's decision not to respond to such speech? These questions raise issues of both law and educational psychology, and this Article engages them at both levels, ultimately trying to weave them together in its proposed approach. The Article's first two parts discuss the extent to which schools can legally restrict hostile student speech about school officials, should they choose to do so. Part I examines how courts have traditionally approached hostile student speech about school officials when it occurs at school, and Part ? then considers how courts have been analyzing the issue when it moves off campus. …