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Nicoll: University Student Speech and the Internet

Nicoll: University Student Speech and the Internet

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The First Amendment freedom of speech is integral to American identity. Every time it has heard such a case, the Supreme Court reiterates its assumption that the right is protected and governmental interference with this right is only allowed in a few, narrow circumstances. One of these exceptions exists for speech made in the school setting, where students are subject to stricter limitations on their speech than the general public.
The Internet’s ability to simultaneously be everywhere and nowhere complicates this discussion. Students, schools, courts, and academics are all unsure of how to deal with online speech that students make from their homes but that then makes its way into the school environment. The few circuits that have heard these cases seem willing to grant school administrations the authority to punish students for such speech, but they have employed a widely variable collection of tests and have only heard cases involving middle- and high-school students.
A growing body of scholarship calls for the Supreme Court to take a case applying its school speech doctrine to a student’s online speech. This Note joins that discussion by arguing that the Court should hear a case from the university setting and reiterate that university administrations must make a stronger showing than their high-school counterparts because the justifications for limiting student speech in middle and high schools do not apply in the university context. Further, the Court should allow for consideration of tone in all of these cases because Americans today are virtually incapable of communicating without sarcasm, and only protecting genuine speech would severely chill all speech.
The First Amendment freedom of speech is integral to American identity. Every time it has heard such a case, the Supreme Court reiterates its assumption that the right is protected and governmental interference with this right is only allowed in a few, narrow circumstances. One of these exceptions exists for speech made in the school setting, where students are subject to stricter limitations on their speech than the general public.
The Internet’s ability to simultaneously be everywhere and nowhere complicates this discussion. Students, schools, courts, and academics are all unsure of how to deal with online speech that students make from their homes but that then makes its way into the school environment. The few circuits that have heard these cases seem willing to grant school administrations the authority to punish students for such speech, but they have employed a widely variable collection of tests and have only heard cases involving middle- and high-school students.
A growing body of scholarship calls for the Supreme Court to take a case applying its school speech doctrine to a student’s online speech. This Note joins that discussion by arguing that the Court should hear a case from the university setting and reiterate that university administrations must make a stronger showing than their high-school counterparts because the justifications for limiting student speech in middle and high schools do not apply in the university context. Further, the Court should allow for consideration of tone in all of these cases because Americans today are virtually incapable of communicating without sarcasm, and only protecting genuine speech would severely chill all speech.

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Published by: New England Law Review on Apr 17, 2013
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University Student Speech and theInternet: A Clusterf***
E
LIZABETH
N
ICOLL
 
A
BSTRACT
 
The First Amendment freedom of speech is integral to Americanidentity. Every time it has heard such a case, the Supreme Court reiteratesits assumption that the right is protected and governmental interferencewith this right is only allowed in a few, narrow circumstances. One of theseexceptions exists for speech made in the school setting, where students aresubject to stricter limitations on their speech than the general public.The Internet’s ability to simultaneously be everywhere and nowherecomplicates this discussion. Students, schools, courts, and academics are allunsure of how to deal with online speech that students make from theirhomes but that then makes its way into the school environment. The fewcircuits that have heard these cases seem willing to grant schooladministrations the authority to punish students for such speech, but theyhave employed a widely variable collection of tests and have only heardcases involving middle- and high-school students.A growing body of scholarship calls for the Supreme Court to take acase applying its school speech doctrine to a student’s online speech. ThisNote joins that discussion by arguing that the Court should hear a casefrom the university setting and reiterate that university administrationsmust make a stronger showing than their high-school counterparts becausethe justifications for limiting student speech in middle and high schools donot apply in the university context. Further, the Court should allow forconsideration of tone in all of these cases because Americans today arevirtually incapable of communicating without sarcasm, and onlyprotecting genuine speech would severely chill all speech.
 
Candidate for Juris Doctor, New England Law | Boston (2013). B.A., Philosophy andPhysics,
cum laude
 , Phi Beta Kappa, Roanoke College (2010). I would like to thank twomembers of Volume 46 without whose unrelenting—sometimes even aggressive—support,this Note would not exist. You know who you are.
 
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New England Law Review
 
v. 47 | 397
 
I
NTRODUCTION
 
“[U]niversities cannot censor or suppress speech, nomatter how obnoxious in content, without violating their justification for existence.”
1
 “For a public university governed by the FirstAmendment, adopting content-based access limits wouldalmost certainly abridge both free speech and academicfreedom.”
2
 he First Amendment right to free speech is a basic tenet of Americanidentity.
3
Every time the Supreme Court has discussed this right, theCourt has articulated it as one to which citizens are entitled, unlesscertain exceptions apply.
4
This assumption safeguards the freedom ofspeech and thereby protects the intellectual discourse that is a cornerstoneof both democracy and education.
5
One such exception is when thecircumstances surrounding an instance of speech involve a school setting.
6
 The Supreme Court has held that speech is “school speech” if it occurs oncampus or if, when made, it is reasonably foreseeable that the speech willsubstantially disrupt the school environment.
7
School speech may belimited if it (1) materially interferes with a school’s daily functions, (2) islewd, (3) bears the imprimatur of the school, or (4) promotes illegal druguse.
8
 
1
Joseph W. Bellacosa,
The Regulation of Hate Speech by Academe vs. The Idea of a University: AClassic Oxymoron?
 , 67 S
T
.
 
 J
OHN
S
L.
 
R
EV
. 1, 3 (1993) (quoting Nat Hentoff,
‘Speech Codes’ on theCampus and Problems of Free Speech
 , 38 D
ISSENT
546,
 
549 (1991)).
2
R
OBERT
M.
 
O’N
EIL
 ,
 
F
REE
S
PEECH IN THE
C
OLLEGE
C
OMMUNITY
70-71 (1997).
3
 
See
U.S. C
ONST
. amend. I; George P. Fletcher,
Constitutional Identity
 , 14 C
ARDOZO
L.
 
R
EV
.
 
737, 741 (1993) (“[T]he American constitutional spirit is expressed in upholding dissent evenwhere, and particularly where, it collides with the collective interest in national pride.”).
4
 
See, e.g.
 , Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[T]he constitutional guaranteesof free speech and free press do not permit a State to forbid or proscribe advocacy of the useof force or law violation except where such advocacy is directed to inciting or producingimminent lawless action and is likely to incite or produce such action.”); Schenck v. UnitedStates, 249 U.S. 47, 52 (1919) (“The question . . . is whether the words used are used in suchcircumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”). 
5
 
See
Bellacosa,
supra
note 1, at 1;
see also
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,637 (1943) (“That they are educating the young for citizenship is reason for scrupulousprotection of Constitutional freedoms of the individual, if we are not to strangle the free mindat its source . . . .”).
6
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509, 514 (1969) (requiring ashowing of interference with school operations).
7
 
Id.
 
8
Morse v. Frederick, 551 U.S. 393, 397 (2007) (allowing regulation of speech that
T
 
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University Student Speech and the Internet
 
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Lately the Internet, especially social media, has entered thisdiscussion.
9
This new technology has left students, schools, and academicswondering whether students may be punished for online comments theypost from home if the comments later infiltrate the school environment.
10
 The few circuits that have heard this question seem willing to answer it inthe affirmative, but they have only considered the issue in middle- andhigh-school settings.
11
Federal courts that have heard free speech casesarising from the university setting—but not in the Internet context—accordmore protection to this right because the “marketplace of ideas”
12
is asintegral to academia as it is to democracy.
13
Law reviews are saturated withdiscussions of the potential implications of social networking and theInternet on the free speech rights of high-school students,
14
but discussionof this problem in the university context is virtually nonexistent.
15
TheMinnesota Supreme Court is currently the only court to have consideredthe implications of social media on a university student’s sacred right tofree speech.
16
In
Tatro v. University of Minnesota
 , that court narrowly
encourages drug use); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267-71 (1988)(upholding the school’s authority to censor high school newspaper); Bethel Sch. Dist. v.Fraser, 478 U.S. 675, 685 (1986) (ruling that sanctions for lewd language are entirely within aschool’s permissible authority);
Tinker
 , 393 U.S. at 514 (striking down a school’s prohibition ofwearing armbands because the speech did not substantially disrupt or materially interferewith school activities).
9
 
See, e.g.
 , Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 207 (3d Cir. 2011) (“It all beganwhen Justin Layshock used his grandmother’s computer to access a popular socialnetworking internet web site . . . .”); Emily Gold Waldman,
Badmouthing Authority: HostileSpeech About School Officials and the Limits of School Restrictions
 , 19 W
M
.
 
&
 
M
ARY
B
ILL
R
TS
.
 
 J. 591,591 (2011) (“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 usesocial networking technologies like e-mail, texting, and Facebook, and that nearly sixtypercent of the students who use social networking discuss school-related topics online.”).
10
 
See
 
infra
Part III.
11
 
See, e.g.
 ,Doninger v. Niehoff, 527 F.3d 41, 44 (2d Cir. 2008); Wisniewski v. Bd. of Educ. ofWeedsport Cent. Sch. Dist., 494 F.3d 34, 35-40 (2d Cir. 2007). 
12
 
Tinker
 , 393 U.S. at 512 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1966)).
13
 
See
Bellacosa,
supra
note 1, at 1-3 (“[University-imposed speech codes] clash head-onwith the educational environment of free discourse, openness, and re-exploration of ideas,even detestable or very unsettling ideas.”).
14
 
See, e.g.
 , Mary-Rose Papandrea,
Student Speech Rights in the Digital Age
 , 60 F
LA
.
 
L.
 
R
EV
.
 
1027, 1028-1102 (2008); James M. Patrick, Comment,
The Civility-Police: The Rising Need toBalance Students’ Rights to Off-Campus Internet Speech Against the School’s Compelling Interests
 , 79U.
 
C
IN
.
 
L.
 
R
EV
.
 
855, 865 (2010).
15
 
See infra
text accompanying note 16.
16
 
See
Eugene Volokh,
Court Upholds Discipline of University Student Based on Speech, Citing
Tinker, V
OLOKH
C
ONSPIRACY
(July 11, 2011, 6:17 PM), http://volokh.com/2011/07/11/court-upholds-discipline-of-university-student-based-on-speech-citing-tinker/.

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