Freedom of speech in schools in the United States

In the landmark decision Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court formally recognized that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate".

[2] In Rosenberger v. Rector and Visitors of the University of Virginia, the Supreme Court declared: "Discrimination against speech because of its message is presumed to be unconstitutional".

Accordingly, for other on-campus speech that is neither obscene, vulgar, lewd, indecent, or plainly offensive under Fraser nor school-sponsored under Hazelwood nor advocating illegal drugs at a school-sponsored event under Frederick, Tinker applies limiting the authority of schools to regulate the speech, whether on or off-campus, unless it would materially and substantially disrupt classwork and discipline in the school.

School authorities and educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

[2] While students were along a public street in front of school watching the Olympic Torch Relay pass through, Frederick unfurled a banner bearing the phrase: "BONG HiTS [sic] 4 JESUS".

The Supreme Court ruled specifically for Levy, holding that the school's interests to prevent disruption under Tinker were not sufficient to overcome her First Amendment rights.

These rulings demonstrate the Court's acknowledgment of the obligation placed on schools to preserve educational goals and provide a supportive learning environment.

[12] One of these factors is whether the activity sought to be controlled is "pure speech", or sufficiently related to the expression of ideas to fall under the umbrella of the First Amendment.

[13] In the earlier case, Shanley v. Northeast Independent School District, Bexar County, Texas, the court declined to decide whether Tinker reached off-campus speech.

[19] In the next two decades the advent of digital technology and the Internet made it much easier for students to engage in school-focused speech from their own homes.

There, the aggrieved student, angry over what she believed to have been the cancellation of a concert had posted to her blog calling the school administration "douchebags" and urging people to email the superintendent.

[21] In a pair of 2011 cases it reviewed en banc, the Third Circuit ruled against schools that punished students who had created mock MySpace profiles for their principals on their home computers, resolving conflicting holdings by the district courts.

[23]Judge D. Michael Fisher, writing for himself and five other dissenters, primarily argued that the sexual aspects of the student's mock profile of her principal, which the majority had found too exaggerated to be taken seriously, could easily have been taken seriously to the point of injuring not only his reputation but his career and thus were significantly disruptive enough under Tinker to be punishable, without regard to the location, since Tinker had been silent on that.

[28] It acknowledged in a later case where it upheld the discipline of a student who had regularly posted writings suggesting he was seriously considering a school shooting to his MySpace page that while LaVine had involved the issue of where the speech occurred, it had not found it dispositive nor discussed it.

A student's profanity-laced parody of a principal is hardly the same as a threat of a school shooting, and we are reluctant to try and craft a one-size fits all approach."

[29] In 2015 the Fifth Circuit was again explicitly asked to determine whether Tinker applied to off-campus speech; this time the court, hearing the case en banc, accepted.

The petitioner in Bell v. Itawamba County School District had posted a profanity-laced rap on his Facebook and YouTube pages accusing two coaches of sexual misconduct with female students and threatening violence against them.

"Bell's position is untenable; it fails to account for evolving technological developments," Judge Rhesa Barksdale wrote for the majority, citing the threatening statements in the rap, and the disruption it caused, as outweighing its off-campus origin and thus coming under Tinker.

James L. Dennis's lengthy dissent, one of several, joined by one other judge and another one in part, accused the majority of misreading many of the precedents it cited; he also believed that the rap was addressing matters of public concern with its allegations against the coaches and thus was entitled to greater protection.

"[Its] vague framework fails to provide constitutionally adequate notice of when student speech crosses the line between permissible and punishable off-campus expression", he wrote.

[31] Edward C. Prado, who had joined Dennis's dissent in part, said that the circuit should wait for the Supreme Court to decide the issue instead of attempting to do so on its own.