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date: 21 July 2019

Abstract and Keywords

In today’s digital age, the line between on-campus and off-campus speech has become murky. Speech initially expressed on a student’s home computer, tablet, or smartphone can instantly be accessed anywhere, including at school. But the United States Supreme Court’s student speech cases, which largely predate the digital age, do not grapple with this current reality. This chapter explores lower courts’ attempts to find a new dividing line, beyond the physical schoolhouse gate, for schools’ jurisdiction over student speech. So far, the emerging consensus is that the test should be whether the speech is likely to cause a material disruption at school. That standard, in turn, can implicate several subsidiary questions: whether the speech is arguably threatening; whether the student speaker was punished with suspension or only a minor sanction; whether the speech targets a fellow student or a teacher/administrator; and whether the speech conveys a substantive viewpoint. This chapter analyzes how courts grapple with each of those issues, and then shifts the lens to explore what happens when school personnel, rather than students, are the ones speaking online. It concludes that the Supreme Court will soon weigh in to provide more guidance on these complex issues, building on the lower court consensus that is already developing.

Keywords: Free speech, Student speech, Teacher speech, Online speech, Off-campus speech, School jurisdiction, Speech outside of schools, Tinker v. Des Moines

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