University Student Speech and the Internet
Lately the Internet, especially social media, has entered thisdiscussion.
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.
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.
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”
is asintegral to academia as it is to democracy.
Law reviews are saturated withdiscussions of the potential implications of social networking and theInternet on the free speech rights of high-school students,
but discussionof this problem in the university context is virtually nonexistent.
TheMinnesota Supreme Court is currently the only court to have consideredthe implications of social media on a university student’s sacred right tofree speech.
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);
, 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).
, 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
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.”).
,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).
, 393 U.S. at 512 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1966)).
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.”).
, Mary-Rose Papandrea,
Student Speech Rights in the Digital Age
, 60 F
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
855, 865 (2010).
text accompanying note 16.
Court Upholds Discipline of University Student Based on Speech, Citing
(July 11, 2011, 6:17 PM), http://volokh.com/2011/07/11/court-upholds-discipline-of-university-student-based-on-speech-citing-tinker/.