Chalk Talks - Maintaining the Schoolhouse Gate: Why Public Universities Should Not Regulate Online, off Campus Communications through Student Handbooks

I. INTRODUCTIONSchool officials of public K-12 and universities are all twitter over the use of social media by their students. Many school officials fear that such communication may lead to the offense and embarrassment of an unlimited audience. Online communication has raised a new tension between protecting students' freedom of speech and shielding from real and perceived threats of violence.' School officials are forced to walk a thin line when balancing the regulation of such speech with the legal rights provided to the students under the First Amendment. Unfortunately, in attempting to safeguard campuses, school officials have overreached their authority in restricting student speech, particularly when the speech occurs online and off campus.1 2The courts have decided only a limited number of cases dealing with the use of social media by students. However, within these cases courts have found that regulating students' use of social media violates students' First Amendment rights. This Note will examine the history of student speech protections and why these protections should be extended to online, off campus communications. Next this Note will outline the procedure a court will use to determine whether or not a student's protected speech has been violated. It will investigate how courts have applied speech protections to online communications of public K-12 students and why such protections prevent from regulating social media communications through student handbooks. Due to the greater amount of leeway for free speech by students in a university setting, this Note will argue that public university officials should not be able to use student handbooks to regulate the use of social media by their students. Finally, this Note will conclude with recommendations for future court decisions regarding the use of university handbooks to regulate a university student's protected speech.II. ONLINE, OFF CAMPUS COMMUNICATIONS ARE PROTECTED SPEECHMuch of cyber speech occurs outside of the school on home computers and cell phones. In fact, twenty three percent of teenagers between the ages of 12 and 17 who own mobile cell phones use them to access social networking cites like MySpace and Face book.' Therefore, the modem inquiry has become whether school officials can extend their regulating authority from speech that occurs within the school to students' speech that occurs within the cyber realm outside of school.The Supreme Court has never allowed schools to punish students for off-campus speech that is not school-sponsored ... [and to do so] would significantly broaden school districts' authority over student speech and would vest school officials with dangerously overbroad censorship discretion.3 4 However, the Court has implied that students can only be sanctioned for speech that occurs on campus.5 It has been noted that [t]he very premise of Tinker - that students do not shed their First Amendment rights to free speech at the 'schoolhouse gate'-indicates that the restrictions at stake occur at school.6 Therefore, outside of school, a student should maintain all First Amendment rights,7 and these rights apply to online communications.Due to the lack of Supreme Court decisions instructing whether online activity amounts to on-campus or off-campus activity, the lower courts are left to address the issue of how far off campus, if at all, a school's jurisdiction to regulate extends over student There have been cases in which the courts have determined that may regulate online speech. However, these holdings are limited to speech that is targeted at the school and does in fact cause an actual disruption on campus.9 Therefore, if school officials are motivated by a mere fear that online communication may lead to the offense and embarrassment of an unlimited audience, the speech cannot be regulated.HI. HISTORY OF STUDENT SPEECH PROTECTIONSIn the last few decades, the federal courts, including the United States Supreme Court, have analyzed the extent to which school officials may regulate student speech. …