Online Student Speech and Tinker

By Sonja Trainor

When the U.S. Supreme Court announced its now-famous Tinker decision in 1969, in which it said students and teachers retain their First Amendment right to free speech within “the schoolhouse gate,” in some ways the concept was not new.

What was somewhat new was the idea that the First Amendment restricted school officials’ authority to discipline students for speech that they feared may be disruptive. In Tinker, the students wore black armbands to school in protest of the Vietnam War. The court decided that the students had a right to engage in this “pure speech” because school officials had no reason to anticipate that the students’ wearing of the armbands would “substantially interfere with the work of the school or impinge upon the rights of other students.”

The court further explained that, although “the classroom is peculiarly the ‘marketplace of ideas,’” even speech outside of the classroom -- “in the cafeteria, or on the playing field, or on the campus during the authorized hours” -- is an important part of the educational process.

Tinker has stood as the seminal ruling on student free speech rights in the school context. Indeed, future decisions on public school authority to restrict student speech (Hazelwood v. Kuhlmeier -- school-sponsored speech; Bethel v. Fraser -- lewd and vulgar speech; Morse v. Frederick -- drug-related speech) are often referred to as Tinker “progeny.” It is logical that courts looked to Tinker when the first challenges to public school discipline of students for online speech started appearing in courts in the 1990s. Now we have a handful of federal appellate decisions and numerous federal district court decisions applying Tinker in First Amendment-based challenges to public school official discipline of students for online off-campus speech. Although the state of the law is far from clear, patterns are emerging which can provide school officials with some guidance in this area. And it all comes back to Tinker.

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