Annotated Bibliography
United States public K-12 schools should be allowed to regulate students’ off-campus electronic speech.
Introduction
This is an interesting topic area. It will likely pique the interests of students whose cell phones and social media networks are basically attached to their bodies.
The resolution is sort of okay, but not really.
Most importantly, the Probable Cause (PC) resolution, despite its own limitations is much better. The PC resolution is more precise, there are clear advocates on both sides, and it is a little bit easier to research.
Some say the PC topic involves a “complex legal term” – PC, but the issues around this resolution are far more complex not only because they are just as “legal,” but because the law is substantially less settled, with the Supreme Court not having addressed the question.
The question in 99% of the literature regarding this topic is what standards should govern schools regulation of students’ off-campus electronic speech. Courts agree that they can do it, only ruling against schools when those schools had no justification to regulate.
So, legally, the Pro isn’t controversial. With substantial efforts, I was only able to find one author who said schools shouldn’t be able to do so, but even this author agreed that schools should be able to regulate students’ off-campus electronic speech if the speech constitutes a true threat.
So, in the end, I don’t know of a single author (credible or otherwise) that say K-12 schools shouldn’t be able to regulate off-campus electronic speech at all.
That said, I think there is a chance this resolution could win. People perceive it as easier to debate because it doesn’t have the term “probable cause” in it. Given this, and since two camps are using it (Capitol, first session of Harvard), I will walk you through the terms of the resolution, their relevance, critical background related to the topics, Pro arguments and Con arguments that I will make as applicable to the resolution as possible.
Resolution Terms
United States K-12 public schools. This is fairly straight-forward. This phrase simply refers to K-12 schools in the United States that are public.
K-12 means kindergarten-12th grade
Public means the school are funded by taxpayers and free to all students who are of age.
The term “public” is important in two ways.
First, administrators in public school are considered government officials who represent the government. The Bill of Rights, which the First Amendment is part of, provides rights protections against the government.
Second, private entities such as private schools can make agreements with enrolled students with few restraints. Private schools can, for example, say that as a condition of enrollment that students’ off-campus speech can be regulated by the school.
Clay Calvert, 2001, Associate Professor of Communications & Law and Co-Director of the Pennsylvania Center for the First Amendment at The Pennsylvania State University, Off-campus speech, on-campus punishment: Censorship of the emerging Internet underground, Journal of Science and Technology Law, https://www.bu.edu/law/journals-archive/scitech/volume72/calvert.pdf DOA: 7-3-16
Peter Ubriaco was expelled from school in 1999 for creating a Web site that he contended “was funny and irreverent but that his school alleged was violent and pornographic.”112 The freshman from Albertus Magnus High School in Rockland County, New York, admonished visitors to his site to, among other things, “‘walk into the local mall and shout the word ‘penis’ at the top of their lungs.’”113 Although Ubriaco distributed leaflets at school to publicize the site, he created it, as his attorney put it, “‘in the comfort and security of his own home.’”114 Outraged at the school’s response to the Web site, Ubriaco filed a one million dollar lawsuit in federal court in November 1999.115 He alleged that the expulsion violated his constitutional right to free speech.116 Ubriaco’s attorney contended the site did not contain either pornography or threats against the school, but merely “‘served to entertain Peter [Ubriaco] and his friends with amusing anecdotes and other writings.’”117 In July 2000, however, Ubriaco’s lawsuit was thrown out of court before the judge even examined the site’s content.118 The reason? Ubriaco’s school was private and thus was not considered a state actor.119 The federal district court for the Southern District of New York concluded that, although private schools are regulated by the state and may receive some funds from the state, “‘such regulation and funding does not transform the acts of these institutions into acts of the state.’”The court added that the “‘school’s action in expelling a student for what it considered to be inappropriate behavior cannot by any stretch of the imagination be considered state regulation of the Internet.’” Peter Ubriaco’s attorney apparently forgot the basics of the state action doctrine and the public/private dichotomy. As Professor Matthew Bunker recently wrote: It is a truism of First Amendment doctrine that the constitutional free speech and free press clauses are triggered only by state action. That is, unless state or federal governments take some affirmative steps to limit free expression, the protections of the First Amendment simply do not apply to the case. The threshold question that courts must consider when addressing First Amendment claims in the context of Web-based student expression cases is seemingly straightforward: Does the student attend a public school or a private school? If the student attends a private school, then the school may punish expression on home-created Web pages without fear of violating the First Amendment. If the student attends a public school, however, the First Amendment may be implicated and a constitutional question of free speech rights may arise.
This resolution is irrelevant to private schools.
Should be allowed. “Should” simply means ought, and “should be” is passive voice, meaning the Pro can, and in this case has to, defend the status quo. Schools are allowed to monitor students’ off-campus speech now. This resolution requires the Pro to defend that.
As a side note, this is something else that distinguishes it from the Probable Cause resolution – PC is not the standard now, so arguing for it would be arguing for a new standard to govern school searches.
Off campus. The term “off campus” in the resolution is somewhat problematic. The basic problem is that the whole reason the controversy related to the resolution arose is that it is difficult in the age of the Internet to determine what is on-campus and what is off-campus.
Steve Adams, is a partner at Barton Gilman and a member of the firm’s Executive Committee. He focuses his practice on school law and civil litigation, September 2012, Is Regulating off-campus cyberbullying off limits?, https://www.bartongilman.com/news_events/168-pis-regulating-off-campus-cyberbullying-off-limits-p DOA: 7-1-16
Is it important to have a provision in a school disciplinary code specifically concerning off-campus cyberbullying?
Yes. A school’s responsibility doesn’t end when the school bell rings ending classes for the day. The lines between home, school and work have become so blurred in recent years, and they could eventually become non-existent in the not-too-distant future. Schools have to confront these issues because there are so many more mechanisms for kids to be mean to one another. Rhode Island law defines cyberbullying to include speech that’s materially and substantially disruptive to the school environment, which arguably includes off-campus speech on social media and in other electronic communications. So, school discipline codes should address the issue as well. A student may challenge this type of policy, but it’s probably worth pursuing given the stakes.
That said, the literature does frequently use this term and it is possible to generally distinguish the two. For example, if a student creates a website/blog/social media post at home and that post has nothing to do with a school assignment or a school-sponsored activity, that can be considered to be off-campus. The the students makes the website on campus or promotes it at-school-that can be considered on-campus.
Now, there are still blurry areas. What if a student access the website from a school computer? Shows it to a friend or teacher using his or her phone at school? What is someone access it at school using a school computer?
These are all questions that need to be answered in terms of on-campus and off-campus, and some of them have been issues in court cases, but I think most would agree that it is possible to at least speak generally about on-campus and off-campus, so I don’t think it makes the resolution undebatable.
Electronic speech. Electronic speech is simply speech – written or verbal – that occurs on an electronic network, such as a web page, blog, or social media platform (Facebook, Instagram, Twitter, etc).
Regulate. “Regulate” has been in many past debate topics in all types of debate and generally means to “control” something by “rule” (Google definitions). In this context, it is meant to get at whether or not schools can punish students for violating rules they set-forth that attempt to limit online speech determined innapropriate by schools.
Though I don’t think PF debates will take this route, it is worth pointing out that policy topics stopped using the term “regulate” because it really makes resolutions bidirectional. Why? Because the Pro could argue for a standard/regulation that is less restrictive than the status quo. In this context, a Pro team could argue that schools should be allowed to regulate off-campus speech only if an intent to harm was established. This would still be a regulation (and would be topical) but would effectively result in less regulation than what is permitted by the courts in the status quo. So, if you fear specific Pro cases that would make the topic bidirectional, you have another reason to vote for the Probable Cause topic.
Topic Background
In the previous section of the essay I discussed the meaning of some key terms. In this section I will explore some of the critical background information that is essential to understand the arguments on both sides of the resolution. Basically, these arguments pit the need for security in schools and the prevention of cyberbullying against students’ First Amendment rights.
These arguments are steeped in the legal literature so this will be the focus of the discussion.
One of the most important things about this resolution is that unlike the Probable Cause resolution the Supreme Court has never made a ruling explicitly about what whether or not schools can regulate off-campus speech or what standards should govern that regulation.
Consequently, the significant court decisions have been issued by district, appellate, state, and trial courts. These courts have attempted to ground their decision-making in other Supreme Court cases that, while not addressing off-campus speech specifically, have potentially valuable precedent.
The most important Supreme Court case precedent related to this area is Tinker v. Des Moines (1969).
Tinker established a number of critical precedents –
One, students have rights, particularly First Amendment rights, in schools. These rights can be limited, but students do have them.
Two, to justify curtailing the students’ First Amendment rights, schools most prove that the speech in question (in this case, it was in-school speech), either caused a substantial disruption to the educational environment or threatened the rights of other students.
Emily Smith, University of Richmond School of Law, August 2015, CEPI Education Law Newsletter, The Applicability of the Tinker Test to Off-Campus Cyber Speech: Policy Implications, https://www.cepi.vcu.edu/media/university-relations/cepi/pdfs/newsletters/2015-16/2015-11EdLawNewsletter-Tinkerreview-Smith.pdf DOA; 7-2-16
The Supreme Court’s decision in Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733 (1969), set the stage for judicial analysis of student expression litigation. Under the Tinker standard, schools may prohibit speech that “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities” or that collides “with the rights of other students to be secure and to be let alone.” Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062 (9th Cir. 2013) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969)).
As noted, the Tinker case was not about off-campus speech, but since there are no Supreme Court cases about on-campus speech, lower courts have looked to this case for guidance (it is considered the most important Supreme Court case related to students’ First Amendment rights) and have generally upheld schools’ punishments of students for problematic online speech when the school could prove a substantial disruption did occur.
Now, of course, the courts would also be justified in upholding the punishment if the activity threatened another student, but generally lower courts have focused on the first prong of the test – did the speech disrupt the environment – and not the second program – whether or not it infringed on the rights of other students. If schools meet either prong of the test they are justified (according to all or nearly all courts) in regulating/punishing the speech.
The important thing to note is that all (or nearly all) courts have concluded that the regulation is justified as long as the schools provide reasonable evidence of a material disruption.
Cyberbullying Research Center, 2012, Can a School Respond to Off-Campus Cyber-Bullying, https://cyberbullying.org/can-a-school-respond-to-off-campus-cyberbullying DOA: 7-2-16
There are several examples of cases where students were successful in their lawsuits against schools when the student was disciplined for off-campus behavior (see: Klein v. Smith, 1986; Emmett v. Kent School District No. 415, 2000; Layshock v. Hermitage School District, 2011; J.S. v. Blue Mountain School District, 2011. In all of these cases, however, the school was incapable of demonstrating that the off-campus behavior or speech resulted in, or had a likelihood of resulting in, a substantial disruption at school. In fact, when the 3rd Circuit Court of Appeals ruled against the schools in Layshock and Blue Mountain, Judge Kent Jordan stated: “The issue is whether the Supreme Court’s decision in Tinker, can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.” Indeed, as noted in Bell v. Itawamba County Schoool Board (2015) “…of the six circuits to have addressed whether Tinker applies to off-campus speech, five, including our own [the 5th], have held it does.” (The lone exception being the 3rd Circuit which struggled with Layshock and J.S.).
This is what makes it difficult to be Con on this topic – it’s hard to find people who argue that schools should not be allowed to regulate off-campus speech if this substantial material disruption standard is met, and this is how courts look at the issue. I only found one author that (mostly) disagrees, and I’ll talk about that more when I address the Con.
Moreover, every author (including even the one largely Con author just referenced) agrees that schools can regulate off-campus speech that either uses the school’s impranture or is a true threat –
How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy that Considers First Amendment, Due Process, and Fourth Amendment Challenges
https://wakeforestlawreview.com/2011/11/how-public-schools-can-constitutionally-halt-cyberbullying-a-model-cyberbullying-policy-that-considers-first-amendment-due-process-and-fourth-amendment-challenges/ DOA: 7-1-16
Categorically prohibited speech: Schools can wholly regulate two categories of speech, and a cyberbullying policy should address both. First, under Hazelwood, schools can regulate speech that “bear[s] the imprimatur of the school. Thus, for example, if a cyberbully uses the school’s emblem on an Internet message intended to harass another student, the school can discipline the cyberbully regardless of whether the speech originated on- or off-campus.
Second, it is widely accepted that, even under the broadest reading of the First Amendment, “true threats” are not protected. Though the threshold for determining whether a statement is a “true threat” is fairly high, courts have held that, “[i]n light of the violence prevalent in schools today, school officials are justified in taking very seriously student threats against faculty or other students.” Any school cyberbullying policy that requires punishment for a student who makes a “true threat” against a teacher or another student will be constitutional.
For now, let’s turn to the Pro.
As I said, this is the easier (perhaps too easy) side of the resolution to defend.
There are reasons that (nearly) every court has said schools are justified in regulating off-campus speech.
Cyberbullying
The most concrete rationale for regulating off-camps cyber speech is the prevention of cyberbullying.
Joe Dryden, Phd Dissertation, December 2010, School authority over off-campus student expression in the electronic age: Finding a balance between a student’s constitutional right to free speech and the interest of schools in protecting school personnel and other students from cyber bullying, defamation, and abuse, https://digital.library.unt.edu/ark:/67531/metadc33143/m2/1/high_res_d/dissertation.pdf DOA: 7-2-16
The Student Press Law Center filed an amicus brief in Layshock (2010) and argued that if a student‟s speech does not occur on school grounds, at an event sponsored by the school, or through the use of school resources, then a school cannot punish the student without violating First Amendment rights. Lei (2009) supported this off-campus equals off-limits approach by concluding “drawing a bright line between on-campus speech and Internet speech would provide better guidelines for courts and school officials on the scope of the First Amendment” (p. 39). Verga (2007) stated that “school officials are either unclear about the legal boundaries of their powers or refuse to accept the idea that they cannot control or punish off-campus student expression” (p. 729). This extreme position would insulate cyber bullies from any attempts by school officials to protect school operations and the rights of students and school personnel.
Cyberbullying undermines self-esteem, disrupts education, and leads to suicide
Naomi Goodno, Associate Professor of Law, Pepperdine University School of Law. 2011, How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy that Considers First Amendment, Due Process, and Fourth Amendment Challenges, https://wakeforestlawreview.com/2011/11/how-public-schools-can-constitutionally-halt-cyberbullying-a-model-cyberbullying-policy-that-considers-first-amendment-due-process-and-fourth-amendment-challenges/ DOA: 7-1-16
Cyberbullying is a major problem causing significant harm. There is no dispute that students today use e-mail, messaging, texting, and social networking sites on almost an hourly basis to stay in touch with one another. In one survey of thirteen- to seventeen-year-olds, thirty-five percent reported being the targets of Internet harassment including “rude or nasty comments, rumors, and threatening or aggressive messages.” As one teenage victim stated: “It makes me hurt both physically and mentally. It scares me and takes away all my confidence to make me feel sick and worthless.” Indeed, in March of 2011, the White House held a special conference that specifically focused on bullying prevention where the President concluded that cyberbullying is a serious problem facing the United States. Cyberbullying is linked to “low self-esteem, family problems, academic problems, school violence, and delinquent behavior . . . [and] suicidal thoughts.” Studies have shown that, of adolescents who have contemplated suicide, “cyberbullying victims were almost twice as likely to have attempted suicide compared to youth who had not experienced cyberbullying.”
I suspect that cyberbullying will be the most common Affirmative advantage area on this topic and I’ve yet to discover many strong answers to it.
The School Environment
Beyond the specific concern for cyberbullying, there is a general concern from schools that off-campus online speech will reach schools and disrupt the school environment. Beyond cyberbullying and general threats of violence, this could take the form of harassment of teachers, offensive portrayals of administrators, and the general introduction of inappropriate speech that could threaten the well-being of students.
John Ceglia, JD Candidate, Pepperdine, 2012, Pepperdine Law Review, The Dissapearing Schoolhouse Gate: Applying Tinker in the Internet Age, https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1373&context=plr DOA: 7-2-16
In considering a uniform standard to apply, the emotional and physical well-being of all American students must be of paramount concern. It should be uncontroversial that preventing another incident like the Columbine High School tragedy must be an obvious consideration for school administrators when deciding whether to regulate student expression. Additionally, recent attention has focused on the emotional well-being of students. Any standard to regulate student speech must also permit the regulation of speech detrimental to the emotional well-being of students, as this speech can be just as harmful as speech that predates a physical attack on schools. Thus, a standard that ensures school administrators have the ability, and perhaps even the mandate, to investigate any student speech which purports to threaten the physical or emotional safety of the school or its students and staff is essential.
It could also threaten the overall educational environment –
Brittany Kaspar, J.D. Candidate, Chicago-Kent College of Law, Chicago-Kenta Law Review, Beyond the Schoolhouse Gate: Should Schools Have the Authority to Punish Online Student Speech? https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3941&context=cklawreview p. 197-200
While holdings in favor of students have several well-grounded justifications, a “student-friendly” rule is ultimately too narrow to become the preferred treatment of online, off-campus speech. By essentially tying the hands of school administrators, this approach both threatens the learning environment and eliminates the deterrent effect of discipline. This is especially problematic when schoolteachers and administrators might be the best-suited parties to impose punishment in the first place. First, if courts do not allow the Tinker standard to govern Internet speech, administrators may be prohibited from disciplining students even if there is a substantial disruption or an invasion of the rights of others. Preventing Internet speech regulation may cause “infinite problems for school administrators attempting to maintain order and teach civility to young people.” The Snyder dissent expressed concern over this ramification: “I fear that our Court leaves schools defenseless to protect teachers and school officials against such attacks and powerless to discipline students for the consequences of their actions.” If the online speech, for example, specifically victimizes another student, commentators fear that prohibiting discipline “will “create a climate of fear among targeted students, inhibit their ability to learn, and lead to other anti-social behavior’ by the aggressors … The interests at stake – school safety and an inclusive learning environment – are far too important to jeopardize.” In addition to impacting the offender and any potential victims, holding in favor of the students might also have a significant impact on other observing students. First and foremost, permitting unfavorable conduct would “demonstrate to the student body that this form of speech is acceptable behavior.” Neglecting to act in the face of online speech that is nonetheless disruptive or harmful sends a “powerful message to students about the school’s resolve.” Thus, some sanction may be necessary in order to communicate to other students that such conduct will not be tolerated. Additionally, prohibiting punishment of disruptive or harmful Internet speech wholly eliminates the deterrent effect inherent in discipline. When we allow an administrator to punish a student for his or her online speech, it is not only for the sake of that particular speaker, but also to dissuade other students from making similar statements on the Internet. In Tinker, Justice Black expressed concern over this early on with respect to on-campus speech: “One does not need to be a prophet or the son of a prophet to know that after the Court’s holding today some students … will be ready, able, and willing to defy their teachers on practically all orders.” Over forty years later, the Kowalski court echoed this same apprehension: “Experience suggests that unpunished misbehavior can have a snowballing effect, in some cases resulting in “copycat’ efforts by other students.” Thus, “any failure to restrict this type of speech or discipline its author would almost inevitably lead to more of the same.” A final objection to holdings favoring students is that they undermine the rational discretion of administrators. By preventing school officials from imposing punishment, even in the face of disruptive or harmful speech, we are implicitly compelling any injured parties to pursue restitution through courts. The judicial system, however, enters the arena of school discipline with “great hesitation and reluctance.” As the dissent in Morse warned: “No one wishes to substitute courts for school boards, or to turn the judge’s chambers into the principal’s office.” Not only are school administrators physically present at the heart of the activity, they are “trained and paid to determine what form of punishment best addresses a particular student’s transgression.” Because “students will test the limits of acceptable behavior in myriad ways better known to schoolteachers than to judges,” schools are in a “far better position than is a black-robed judge to decide what to do with a disobedient child at school.” In his concurrence in Layshock, Judge Jordan agreed, stating, “to the extent it appears we have undercut the reasoned discretion of administrators to exercise control over the school environment, we will not have served those affected by the quality of public education, which is to say everyone.” The authority and logical discretion of administrators is particularly essential when the online speech creates a harmful or threatening situation that requires immediate on-campus action. When a school, for example, needs to “act quickly and suspend a student on an emergency basis to prevent potential harm while an investigation is undertaken,” resorting to the prolonged processes of the judicial system would be entirely futile. Rather than instilling a fear of judicial liability in every school administrator, these critics argue that they should be granted wide discretion in disciplining off-campus, Internet speech. [J., dissenting). See also Layshock, 650 F.3d at 222 (en banc) (Jordan, J., concurring) (“I worry that the combination of our decisions today in this case and in JS. may send an ‘anything goes’ signal to students, faculties, and administrators of public schools.”; Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 574 (4th Cir. 2011) (“[H]ad the school not intervened, the potential for continuing and more serious harassment of Shay N. as well as other students was real.”). See also Snyder, 650 F.3d at 945 (en banc) (Fisher, J., dissenting).]
Pro teams may also wish to develop some framework-style arguments that articulate the importance of education and why protecting education is the value that should be prioritized.
Joe Dryden, Phd Dissertation, December 2010, School authority over off-campus student expression in the electronic age: Finding a balance between a student’s constitutional right to free speech and the interest of schools in protecting school personnel and other students from cyber bullying, defamation, and abuse, https://digital.library.unt.edu/ark:/67531/metadc33143/m2/1/high_res_d/dissertation.pdf DOA: 7-2-16
Many believe that the education of children represents one of the most important of all governmental functions (Brown v Board of Education of Topeka, 1954). James Garfield (1880), the 20th president of the United States, wrote in his letter of acceptance, “next in importance to freedom and justice is popular education, without which neither freedom nor justice can be permanently maintained” (para. 3). The Supreme Court in Goss v. Lopez (1975) described the education of the nation’s children as “perhaps the most important function of state and local governments” (p. 736). Given this interest, the Supreme Court has consistently recognized public schools as unique institutions where school officials must be afforded greater power and latitude in accomplishing their objectives (New Jersey v. T. L. O., 1985).
Answering Free Speech/The First Amendment
There are a number of answers the Pro can make to the free speech argument.
Thomas Denny argues that avoiding disruptions in schools outweighs free speech rights. Joe Dryden points out that freedom of expression is a qualified right, that it is not absolute, and that the Supreme Court has recognized many limits on student speech.
The fact that the courts have not allowed regulations on off-campus speech where the schools could not demonstrate there was a substantial negative impact on academics caused by the speech proves that allowing regulation of off-campus speech will unduly infringe on students’ rights.
And you can find evidence from Justice Posner in Nuxoll v. Indian Prairie School district that makes the claim that students do not have First Amendment rights. [Related — National Legal Foundation Brief in this case]
Allison Bellnap, one of the key Con authors, at least agrees that schools should be able to regulate speech if it constitutes a “true threat.”
In Morse v. Frederick, another on-campus speech case, Justice Clarence Thomas questioned whether or not students have free speech rights at all.
Con
As I discussed in the introduction to this essay, it is difficult to find Con authors. Of course, this doesn’t mean that it is impossible. There are a few authors who advocate for the Con, though all would agree that students’ off campus speech that is not protected by the First Amendment (a true threat, for example) can be regulated.
It is just that finding the cards is more of a needle-in-the-haystack requirement.
In this section, I will outline the key Con arguments and point you in the direction where you can find some Con evidence
The First Amendment
The core argument against regulating off-campus electronic speech is that such a regulation is a violation of the First Amendment’s protection of freedom of speech.
As reviewed, in the cases where courts have found for the students, the majority opinion rested on the argument that the schools did not prove that there was a substantial disruption to instruction. There were, however, other judges who concurred with those opinions who claimed that there should be no regulation of off-campus student speech.
Walt Lesley Black, PhD, Clinical Associate Professor of Education Policy and Leadership at Southern Methodist University, https://law.slu.edu/sites/default/files/Journals/watt_lesley_black_article.pdf
Judge Brooks Smith wrote a concurring opinion, in which four other judges joined, agreeing with the “Chagares Three” that the school district had acted illegally. Judge Smith differed, however, on the question of whether Tinker should apply to off-campus speech: “I would hold that it does not,” he wrote, “and that the First Amendment protects students engaging in off campus speech to the same extent it protects speech by citizens in the community at large.” Justice Smith reasoned that the Tinker holding is tied specifically to the “special characteristics of the school environment” and the interest of school authorities in maintaining safety and discipline inside the schools. While he acknowledged that Tinker references student speech “in class or out of it,” he contended that when read in context, the phrase refers to non-instructional settings at school, such as lunch or recess, and not to speech that occurs off campus. “Had the Court intended to vest schools with the unprecedented authority to regulate students’ off-campus speech,” he argued, “surely it would have done so unambiguously.” Judge Smith described a hypothetical situation in which a student posts an online editorial in favor of marriage equity, and subsequent to his expression, a significant disruption occurs at school. Assuming that Tinker applies to offcampus speech, Justice Smith suggested, the school could not only punish the students who were involved in the disruption, but also the student whose expression elicited the disruptive reaction. “That cannot be, nor is it, the law” he concluded. Judge Smith worried that this would “create a precedent with ominous implications,” including the possibility that schools could ultimately sanction adult expression within the community
Judge Brooks Smith wrote his opinion in Wisniewski v. Bd. of Education and you can click on the decision to read his full opinion and cut some more cards. You can find similar evidence in Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 220-21 (3d Cir. 2011)
And you can find more evidence in Synder v. Blue Mountain:
Brittany Kaspar, J.D. Candidate, Chicago-Kent College of Law, Chicago-Kenta Law Review, Beyond the Schoolhouse Gate: Should Schools Have the Authority to Punish Online Student Speech? https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3941&context=cklawreview p. 196-7
The two existing circuit court opinions holding in favor of students were both decided by the Third Circuit. Initially, the Circuit issued opposite holdings in two almost factually identical cases – one in favor of the student and the other in favor of the school district. Because these conflicting outcomes resulted in sharp criticism from the legal community, the entire fourteen-member Third Circuit sat, en banc, to hear oral arguments for each of the opinions. Upon this rehearing, the panel came out in favor of the respective student in each. In Snyder v. Blue Mountain School District, the Third Circuit held for a middle school student who was disciplined for creating a MySpace profile of her principal. The profile’s contents ranged from “nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family.” After the principal requested that another student bring a printout of the profile to school, the creator, J.S., received a ten-day out-of-school suspension. Despite its adult language and sexually explicit content, the court determined that the speech caused no substantial disruption and could not reasonably have led school officials to forecast substantial disrupttion in the school. Therefore, the school district’s actions violated J.S.’s First Amendment rights. The court concluded by stating, Neither the Supreme Court nor this Court has ever allowed schools to punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school … an opposite holding would significantly broaden school districts’ authority over student speech and would vest school officials with dangerously overbroad censorship discretion.
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 951 (3d Cir. 2011)
This is the brief written in opposition to the original Blue Mountain appeal.
Similar evidence exists in Judge McMillian’s dissent in Pulaski.
Robert Richards & Clay Colvert, law professors, December 2003, Boston University Law Review, Columbine Fallout: The Long-Term Effects of Free Expression Take Hold in Public Schools, p. 1089
In Pulaski, the Eighth Circuit upheld the school’s authority to discipline Josh Mahan despite the fact that he wrote the letter in question off-campus during his summer vacation. On top of this, Mahan never brought the letter on to school grounds at any time, nor did he ask others to bring the letter to school on his behalf. It only made its way on to campus after it was stolen from Mahan’s home by a friend, who then took it to school without Mahan’s permission. Furthermore, the off-campus authority who properly should have had jurisdiction over Mahan’s off-campus speech – the county attorney – declined to press charges.
The majority in Pulaski, however, never even addressed these facts. Only Judge McMillian, writing in dissent, raised the issue:
I question whether the school had any legitimate authority over such a statement, made in the privacy of his home, not at school or during school hours or using school equipment, which was stolen from his home by one of his friends, at the request of another, and then turned over to school officials. If anything, the statement was arguably a police matter, for which, I note, the local prosecuting attorney refused to issue any charges.
Judge McMillian’s statement must not be relegated to the status of a judicial afterthought. Any expansion of school jurisdictional authority is disturbing when constitutional rights
If you read one article for the Con, you should read this 2001 article by Clay Calvertt. It’s the strongest defense I’ve seen of not allowing schools to regulate off-campus speech unless there is a true threat.
Of course, Con teams need to impact the First Amendment argument with cards such as this one —
Naomi Goodno, Associate Professor of Law, Pepperdine University School of Law. 2011, How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy that Considers First Amendment, Due Process, and Fourth Amendment Challenges https://wakeforestlawreview.com/2011/11/how-public-schools-can-constitutionally-halt-cyberbullying-a-model-cyberbullying-policy-that-considers-first-amendment-due-process-and-fourth-amendment-challenges/ DOA: 7-1-16
In order to maintain a thriving democracy, students cannot be unreasonably encumbered in their freedom to express moral, political, and social ideals and beliefs. The classroom is peculiarly the “marketplace of ideas.” The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth “out of a multitude of tongues, (rather) than through any kind of authoritative selection.” . . . Schools should foster an environment of learning that is vital to the functioning of a democratic system and the maturation of a civic body.[79] — quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).
And their impact claims need to set-up a framework argument that says (a) First Amendment claims are the most important and (B) Strong free speech is necessary to a strong educational system. This would challenge the Framework introduced by the Pro that is discussed above.
Another “offensive” argument against regulating student off-campus speech is parental rights. This argument claims that it should be up to the parents to regulate their children’s speech at home and that school regulations interfere with that right.
Clay Calvert, 2001, Associate Professor of Communications & Law and Co-Director of the Pennsylvania Center for the First Amendment at The Pennsylvania State University, Off-campus speech, on-campus punishment: Censorship of the emerging Internet underground, Journal of Science and Technology Law, https://www.bu.edu/law/journals-archive/scitech/volume72/calvert.pdf DOA: 7-3-16
In the first post-Tinker federal case involving the issue of a school’s authority to punish off-campus speech activities, a federal district court in Texas wrote: [I]t makes little sense to extend the influence of school administration to off-campus activity under the theory that such activity might interfere with the function of education. School officials may not judge a student’s behavior while he is in his home with his family nor does it seem to this court that they should have jurisdiction over his acts on a public street corner. A student is subject to the same criminal laws and owes the same civil duties as other citizens, and his status as a student should not alter his obligations during his private life away from the campus.197 This passage is important for several reasons. Implicit in the statement that school officials “may not judge a student’s behavior while he is in his home with his family” is the idea that parental authority—not school authority— should be the guiding force that deals with a student’s behavior off-campus. Schools must not usurp or replace parental authority; parents and schools play important but distinct roles in the upbringing of children.198 As the United States Court of Appeals for the Second Circuit wrote in considering whether a school could punish students for an underground newspaper that “was conceived, executed, and distributed outside the school,”199 “[p]arents still have their role to play in bringing up their children, and school officials, in such instances, are not empowered to assume the character of parens patriae.”200 In addition, the final sentence in the above-quoted block passage suggests that when children are not in school or participating in a school-related activity, they should not, in fact, be classified as students but are better considered as citizens. When off-campus, society must view minors not in what amounts to their occupational status as students—minors play the role of student, just as if they went to work on a job—but in their status as citizens of the United States. As the court points out in this sentence, minors, as citizens, are subject to generally applicable criminal and civil laws. (Sullivan v. Houston Indep. Sch. Dist., 307 F. Supp. 1328, 134 -41 (S.D. Tex. 1969); Thomas v. Board of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1050 (2d Cir. 1979)).
Answering Cyberbullying
This is a difficult Pro argument to answer.
A couple answers in the literature include —
(a) There are other ways to prevent it
Allison Bellnap, 2011, BYU Law Review, Tinker at a Breaking Point: Why the Specter of Cyberbullying Cannot Excuse Impermissible Public School Regulation of Off-Campus Student Speech, https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2594&context=lawreview DOA: 7-3-16
In addition to permissible regulation of student speech by schools pursuant to the true threat analysis, much speech that can be categorized as cyberbullying is punishable through criminal or civil statutes that constitutionally regulate harassment, defamation, slander, stalking, and so on. Furthermore, social and educational programs can make effective inroads in this arena without posing a threat to individual free speech rights. This Comment does not suggest that we leave victims of cyberbullying with no remedy, only that we tread carefully when extending the power of the government to regulate speech even when, perhaps especially when, that regulation is coming from a powerful school entity and is directed at students directly under their authority.
(b) It sweeps in too much protected First Amendment Speech
Allison Bellnap, 2011, BYU Law Review, Tinker at a Breaking Point: Why the Specter of Cyberbullying Cannot Excuse Impermissible Public School Regulation of Off-Campus Student Speech, https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2594&context=lawreview DOA: 7-3-16
This Comment does not propose that cyberbullying should be tolerated without any consequences whatsoever. It recognizes that much of what is categorized as cyberbullying is a distasteful and potentially damaging form of speech. However, in order to appropriately defend the individual’s right to free speech, the regulation by public-school entities of off-campus student speech must be narrowly tailored to prevent a limited class of speech that is either already under the school’s authority to regulate or that rises to the level of a “true threat.”12 Thus, schools would maintain the power to regulate speech through which the speaker means “to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”13 The alternative—allowing a broad infringement of students’ First Amendment rights by public-school entities in misguided and sometimes inefficient efforts to control cyberbullying—sweeps in too much speech that should be protected. Such actions cannot be upheld as permissible under the Constitution.
Answering School Violence/Learning Environment
This argument is even harder to answer, but there is an interesting argument that allowing expression discourages violence –
Clay Calvert, 2001, Associate Professor of Communications & Law and Co-Director of the Pennsylvania Center for the First Amendment at The Pennsylvania State University, Off-campus speech, on-campus punishment: Censorship of the emerging Internet underground, Journal of Science and Technology Law, https://www.bu.edu/law/journals-archive/scitech/volume72/calvert.pdf DOA
Legal scholar Rodney A. Smolla describes the notion of free speech “safety valves” this way: “If societies are not to explode from festering tensions, there must be valves through which citizens may blow off steam. Openness fosters resiliency; peaceful protest displaces more violence than it triggers; free debate dissipates more hate than it stirs.”239 That teenagers feel frustrated with teachers (Swidler, for example, claimed he was humiliated and assaulted in class by his teacher)240 and the structure of their schools is not a new phenomenon. The Internet, however, provides a new medium on which students can express their frustrations and feelings.241 …..When it came to expression that was perceived by some to be dangerous, threatening or harmful, Brandeis famously wrote, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”257 At the core of the counterspeech doctrine is the principle that “whenever ‘more speech’ could eliminate a feared injury, more speech is the constitutionally-mandated remedy.”258 Before punishing students for speech they create off campus on their own computers, school administrators should remember both the counter-speech doctrine and the safety-valve function of expression described in Part VII.259 They also should bear in mind another famous quote uttered by Justice Brandeis in Whitney: “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.”260 Today, principals seem to fear the Internet and punish children. A teachable moment arises when administrators have the chance to confront students about their speech activities. They must take advantage of that opportunity. They should inform students that the constitutional right of free speech carries with it a concomitant responsibility not to abuse it. Students should be taught about the limits of free expression—that defamatory speech and threats of violence sometimes are not protected speech, that some forms of speech merely pollute the metaphorical marketplace of ideas rather than contribute to a pursuit for the truth—before they are punished for testing those limits.261 Given the pervasiveness of the Internet and World Wide Web, the problems. (239 – Rodney Smolla, Free Speech in an Open Society (1992); 241- See, e.g., Bell, supra note 53 (citing a 1999 Moraga, California case in which students defended a boy suspended for creating an allegedly offensive, off campus Web site, by stat ing that the site gave them “a place to vent frustrations about their high school” and “an out let to get their views across”)
Moving Ahead with Research
Now that you have a basic understanding of the topic, you can start your research.
If you are starting on the Con, I suggest you start with Calvert’s (2001). Off-campus speech, on-campus punishment: Censorship of the emerging Internet underground, Journal of Science and Technology Law, 7, 243.
Pro teams may want to start with Moving bullying from the school yard to cyber space. This article argues that both prongs of the Tinker test should be used when assessing the constitutionality of school regulations of off-campus cyber speech. The article concludes that it is necessary for schools to regulate off-campus cyber speech in order to prevent cyber bullying.
Since there are no Supreme Court cases dealing directly with the issue of regulating off-campus online speech, you will need to look into district court cases. These cases are valuable regardless of what side you are researching because there will be majority and minority opinions.
District Cases that held no First Amendment Violation
Wynar v. Douglas County
Doninger v. Niehoff<
Wisniewski v. Board of Education
Kowalski v. Berkeley County Schools
D.J.M. v. Hannibal Public School District
Doe v. Pulaski School District
District Cases that held there was a First Amendment Violation
>J.S. v. Blue Mountain School District
District Court Decision
ACLU Brief #1, ACLU Brief #2, ACLU Brief #3
Layshock v. Hermitage
Burge v. Colton School District
Related Supreme Court Cases
Although no Supreme Court cases directly address the question of regulating off-campus but online cyber speech, you should read Tinker v. Des Moines . Fraser v. Bethel is also an interesting case, especially since Fraser was a former debater.
Annotated Bibliography
We have also produced an extensive aAnnotated bibliography This bibliography has a lot of useful material, but I should caution the reader that most of the literature assumes that schools ought to be able to regulate students’ off-campus online speech and most of the articles are focused on the question of how to do it/where to draw the line, not whether or not it is acceptable. Nonetheless, you can find useful evidence when reading through the articles.