Lewd, Vulgar, Plainly-Offensive, and Obscene Speech

This chapter focuses on the Bethel School District No. 403 v. Fraser (1986) case – the United States Supreme Court's second review of students' speech rights under the Free Speech Clause of the First Amendment. It discusses the test created in the case for determining when schools can regulate students' speech. This test, referred to as the Bethel test or the Fraser test authorizes schools to censor students' speech if the speech is vulgar, lewd, plainly offensive or obscene. The chapter also discusses the Supreme Court's decision on the scope of students' free speech rights. The ultimate goal of the chapter is to analyze the Bethel School District No. 403 v. Fraser case in order to determine if it empowers schools to censor off-campus student speech.

Material and Substantial Disruption/Infringement of Rights

This chapter focuses on the Tinker v. Des Moines Independent Community School District (1969) case – the first United States Supreme Court decision about student speech under the Free Speech Clause of the First Amendment. It discusses the two tests established in Tinker v. Des Moines Independent Community School District for determining the scope of school authority over student speech. These tests are the “material and substantial disruption” test and the “infringement-of-rights” test. The ultimate goal of the chapter is to analyze the Tinker v. Des Moines Independent Community School District case in order to determine if it authorizes schools to censor off-campus student speech.

Forging the Path Forward from Censorship

This chapter presents the conclusions to the book. It discusses ideas for the future of the off-campus student-speech jurisprudence. This discussion includes guidance for school officials and students on how to navigate the jurisprudence. The discussion urges school officials to exercise censorship restraint when confronted with off-campus student speech unless the speech constitutes a true threat. It also implores school officials and lower courts to treat students as citizens entitled to the right to free speech under the United States Constitution. Consonantly, the chapter recommends that school officials leave censorship of off-campus speech to law enforcement as well as the civil and criminal judicial processes as obtains for the citizenry at large. The goal of the chapter is to recommend ideas that students, school officials and lower courts can consider in order to minimize the abridgement of students' right to speech in off-campus settings.

Background

This chapter provides some background on the existing uncertainty in the student free speech jurisprudence. It reveals the origins of the “schoolhouse gate” phrase that is a staple of the student free speech jurisprudence. It examines the case law on schools' power over student behavior while they are off-campus. This power over conduct was a forerunner to power over speech. Power over speech, however, implicates the First Amendment's Free Speech Clause guarantee of the right to free speech. The chapter underscores the presence of uncertainty in the courts as to whether the free speech guarantee covers students while they are off-campus. The goal of the chapter is to provide context for the others chapters in the book by highlighting the uncertainty evident in the lower court decisions on students' off-campus speech.

State Anti-Bullying Statutes and Student Speech

This chapter highlights the role of state anti-bullying statutes in censorship of student off-campus speech. It examines the details of a representative and comprehensive anti-bullying statute – the New Jersey anti-bullying law. This chapter also explores the definition of harassment, intimidation and bullying under the anti-bullying statute. It discusses the various responsibilities under the law for regulating harassing, intimidating and bullying speech and conduct. It then discusses the relationship of the law to off-campus speech.

Child Pornography

This chapter discusses child pornography speech which the United States Supreme Court first categorically excluded from First Amendment protection in New York v. Ferber (1982). The goal of the chapter is to provide an overview of the child-pornography jurisprudence. The chapter also highlights a case applying the Supreme Court precedent on child pornography to student speech. The chapter concludes that, due to its unprotected nature, students censored for child pornography speech have no First Amendment recourse.

True Threat

This chapter discusses one of the categories within which schools can constitutionally exert power over student speech while students are off-campus. The goal of the chapter is to describe true threat – one of the few categories of speech for which students, like adults, cannot claim a right to free speech against censorship. The chapter begins with a definition of true threats. It also discusses the two perspectives the judiciary uses in analyzing the existence of a true threat: (a) the reasonable-speaker perspective; and (b) the reasonable-listener perspective.

Acceptable Use Policies

This chapter examines critical state and federal requirements for the development of acceptable use policies. It also reviews the role of acceptable use policies in shaping the approach of schools toward student off-campus speech. It highlights components that should be included in acceptable use policies. It also reveals that school districts are increasingly adopting responsible use policies in order to address the student use of personal electronic devices. Acceptable use policies and responsible use policies are viable avenues for school officials to minimize violations of students' First Amendment right to free speech since they are designed to inform and seek student as well as parent consent regarding use of technology-based devices at the school.

Assessing the Current Jurisprudence

This chapter assesses the current state of the off-campus student-speech jurisprudence. It discusses the lower courts' application of the United States Supreme Court's student-speech tests to off-campus student speech. The discussion reveals that there is no uniformity in this application. It further reveals that the lower courts do not uniformly embrace school-censorship authority over off-campus speech. While a majority of courts have been willing to extend school-censorship authority beyond the school campus, a few courts remain resistant to this extension. The chapter also presents data on the judicial trends in the off-campus student-speech jurisprudence. This data reveals that most courts use the material and substantial disruption test when reviewing the constitutionality of school censorship of off-campus student speech. On the other hand, no court has applied the Hazelwood test to off-campus speech. The data also shows that most off-campus speech cases involve speech directed at or against school officials rather than students. The ultimate goal of the chapter is to provide insight into the current unsettled off-campus student-speech jurisprudence.

Their Stories

This chapter presents the stories of students censored by their schools for speaking in an off-campus online forum. It discusses online off-campus student speech in two categories: (a) speech directed at or against school officials or the school; and (b) speech directed at or against students. The chapter examines and analyzes the various legal precedents governing students' First Amendment speech rights under each of these categories. The analysis highlights the lack of clarity and the unsettled nature of the jurisprudence governing students' free speech rights in an off-campus online setting.