L'ús d'un llenguatge amenaçador fora del campus als EUA. Fins a quin punt poden les escoles públiques restringir la parla dels seus estudiants en l'era de Facebook?

AutorManuel Triano López
CargoAssociate Professor of Spanish in the Department of Foreign Languages at Sam Houston State University
Páginas226-238
OFF-CAMPUS THREATENING SPEECH IN THE UNITED STATES OF AMERICA: TO
WHAT EXTENT CAN PUBLIC SCHOOLS RESTRICT THEIR STUDENTS’ SPEECH IN
THE FACEBOOK ERA?
Manuel Triano López
Abstract
This paper seeks to clarify the extent to which public-school ofcials in the United States can discipline their students
for their off-campus expressions, with an emphasis on allegedly threatening language. The United States Supreme
Court –the nation’s highest judicial body– has held that ofcials can restrict on-campus student speech that disrupts or
interferes materially and substantially with school activities. However, the Court has not ruled on the limits of student
speech originating off-campus, an important issue due to the prevalence of networking platforms –such as Facebook–
in the students’ lives. Furthermore, the issue is compounded by the Court’s insufcient guidance on how to review
allegedly threatening language. As a result, lower courts are grappling with the difcult task of establishing a standard
to cover the many contextual variables surrounding student speech in the Facebook era. Predictably, courts have differed
over which standard to apply –if any– to off-campus speech that schools deem as threatening. The paper analyzes these
approaches so that ofcials may continue training the nation’s youth without abridging their right to free speech.
Keywords: United States of America; Constitutional law; free speech; public education.
L’ÚS D’UN LLENGUATGE AMENAÇADOR FORA DEL CAMPUS ALS EUA: FINS A
QUIN PUNT PODEN LES ESCOLES PÚBLIQUES RESTRINGIR LA PARLA DELS SEUS
ESTUDIANTS EN L’ERA DE FACEBOOK?
Resum
Aquesta monograa pretén aclarir en quina mesura els funcionaris de les escoles públiques dels Estats Units poden
disciplinar els seus alumnes pel seu ús de la paraula fora del campus. El Tribunal Suprem dels Estats Units –la instància
més alta de la judicatura— ha resolt que els funcionaris escolars poden restringir una expressió estudiantil realitzada
al campus que interrompi o pertorbi considerable i substancialment les activitats escolars. Tanmateix, el Tribunal no
ha dictaminat sobre els límits de l’expressió estudiantil que s’origini fora del campus, tema que ha cobrat importància
a causa de la prevalença de plataformes de networking –tals com Facebook– en les vides dels alumnes. La manca
de directrius orientatives per part del Tribunal sobre com examinar una expressió suposadament amenaçadora no fa
sinó complicar la qüestió encara més. Com a conseqüència, els tribunals de menor instància s’enfronten a la difícil
tasca d’establir una norma que cobreixi les moltes variables contextuals que giren entorn de la llibertat d’expressió
estudiantil en l’era de Facebook. Com era de preveure, els tribunals han diferit respecte de la norma a aplicar –si és
que cal aplicar alguna norma— respecte a l’expressió fora del campus que les escoles considerin amenaçadora. Aquest
treball analitza aquests plantejaments, a  que els funcionaris puguin continuar formant els joves de la nació, sense
coartar el seu dret a la llibertat d’expressió.
Paraules clau: Estats Units; dret constitucional; llibertat d’expressió; educació pública.
Manuel Triano López, Associate Professor of Spanish in the Department of Foreign Languages at Sam Houston State University.
Article received: 19.01.2016. Review: 12.04.2016. Final version accepted: 26.04.2016.
Recommended citation: Triano López, Manuel. «Off-campus Threatening Speech in the United States of America: to what Extent
can Public Schools Restrict their Students’ Speech in the Facebook Era?», Revista de Llengua i Dret, Journal of Language and Law,
núm. 66, 2016, p. 226-238. DOI: 10.2436/rld.i66.2016.2779.
Manuel Triano López
Off-campus Threatening Speech in the United States of America: to what Extent can Public Schools ...?
Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 227
Summary
1 Introduction
2 Constitutional limits on threats
3 Student speech originating on school premises or during a school-sponsored activity
4 Conclusions
Bibliography
Cases cited
Manuel Triano López
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Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 228
1 Introduction
Global estimates by the International Telecommunication Union (ITU), the United Nations agency for
information and communication technologies, put the proportion of households with Internet access in 2015
at 46%, a signicant increase from the 18% mark in 2005 (International Telecommunication Union, 2015).
Internet users, however, are not constrained by the connes of their households. In fact, the share of adults
in the United States who use a smartphone to access the Internet, but do not have broadband service at home
rose to 13% in 2015 (Horrigan & Duggan, 2015, December 21). Aided by the ubiquity of these mobile
devices, teens (ages 13 to 17) have become one of the most active groups of Internet users in the United
States. In a 2015 survey, 92% of teens reported going online daily; 24% claimed they checked in almost
constantly; and 56% said they went online several times a day (Lenhart, 2015, April 9). Navigating through
social media sites like Facebook, LinkedIn, Pinterest, Instagram, and Twitter has become the preferred online
activity. In 2015, 65% of adults in the United States used social networking sites, a ninefold increase over the
last decade (Perrin, 2015, October 8). The percentages are even higher among younger users: 90% of young
adults, – those aged 18 to 29– used social media in 2015 (Perrin, 2015, October 8), whereas 81% of online
teens reported using some form of social media in September 2012 (“Teens fact sheet,” n.d.). In addition to
social media, teens in the United States use text and instant messaging for networking purposes: in 2015,
55% of teens reported texting their friends daily, whereas 27 % of them used instant messaging for those
daily interactions (Lenhart, 2015, August 6).
The remote networking capabilities of these platforms allow vast numbers of users physically separated
from one other to exchange, instantaneously, large amounts of information through texts, images, videos,
and audio les. This benet, however, can also turn into a serious drawback when these platforms become
the means for sending abusive content. These communications –which, in their most virulent manifestations,
include mean-spirited insults, and even threats of violence– may lead to potentially deleterious effects on the
physical and mental health of the intended recipients. In extreme cases, recipients who have not been able to
cope with the content of these electronic communications have taken their own lives (Belnap, 2011, pp. 501-
502). The pervasiveness of these injurious communications, and the physical and the emotional tolls that they
can exact on recipients have prompted legislatures across the United States to pass regulations. As of July
2015, 47 of the nation’s 50 states had enacted legislation against electronic harassment, and –in 22 of those
47 states– against cyberbullying, i.e., bullying via electronic communication devices (Hinduja & Patchin,
2015). These statutes tend to require local school districts to adopt policies against these social ills, given the
important role of schools in instilling “the habits and manners of civility” (Bethel School District No. 403
v. Fraser, 1986, p. 681), and the students’ widespread adoption of digital devices for remote networking.
Furthermore, the recurrent mass shootings against school communities – Columbine, Santee, and Newtown,
among others– are forcing schools to be vigilant not only about bullying, harassment, and intimidation
posted off-campus, but also about potential threats of violence by their students (Bell v. Itawamba County
School Board, 2015, p. 393; Wynar v. Douglas County School District, 2013, p. 1064).
These laws and school policies, however, must clear some constitutional hurdles to survive (Hanks, 2012,
p. 2). For example, failure to dene concepts such as “harassment” or “cyberbullying” precisely enough
may result in the law or school policy being struck down for vagueness or overbreadth. In other words, the
law or policy will be held unconstitutional if it either forces people to guess at its meaning or proscribes
more speech or activity than necessary. For instance, the court in Saxe v. State College Area School District
(2001) invalidated a school district anti-harassment policy due to vagueness and overbreadth. The policy,
for example, dened “religious harassment” as “unwelcome verbal, written or physical conduct directed
at the characteristics of a person’s religion.” In striking down the policy, the court (2001, p. 215) noted the
overbreadth incurred in prohibiting speech simply because someone might be offended by its content.
Other legal challenges arise not from the wording of the policies, but from the reach of the newer means
of electronic communication. Specically, public-school students –through their parents– have argued in
courts that their right to free speech prevents school ofcials from regulating student communications made
off-campus outside of school hours at events unrelated to school. Compounding the problem, lower courts
have diverged on how evaluate alleged threats and on-campus student speech due to insufcient guidance
from the Supreme Court. Drawing on pertinent court decisions and scholarly literature, this paper seeks to
Manuel Triano López
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Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 229
clarify the constitutional contours of these student expressions in the United States to help public-school
ofcials exercise their authority without violating the students’ right to free speech. Due to space limitations,
the discussion will center on alleged threats that students direct towards members of the school community
(fellow classmates, ofcials, faculty, etc.). The analysis begins with a summary of the governing piece of
legislation protecting free speech in the United States: the First Amendment to the federal Constitution.
2 Constitutional limits on threats
The Free-Speech Clause of the First-Amendment forbids the government from passing laws abridging
the people’ freedom of speech. As interpreted by the U.S. Supreme Court –the nation’s highest judicial
authority–, the Amendment ensures that the government not curtail speech simply because society nds it
“offensive or disagreeable” (Texas v. Johnson, 1989, p. 414), or because that speech “may embarrass others
or coerce them into action” (NAACP v. Claiborne Hardware Company, 1982, p. 910). The broad scope of the
Amendment protects even symbolic speech –i.e., conduct imbued with expressive elements–, such as burning
the U.S. ag to express disapproval of the government (Texas v. Johnson, 1989). This freedom, however,
has boundaries. Accordingly, the government, under certain conditions, may punish people for their speech
without violating the First Amendment. For example, the First-Amendment does not protect certain types
of inammatory speech “if they are likely to inict unacceptable harm” (J.S. ex rel. H.S. v. Bethlehem Area
School District, 2002, p. 651). Accordingly, the Supreme Court has excluded ghting words, i.e., face-to-
face insults (Cohen v. California, 1971, p. 20), which, by their very utterance, provoke violence (Chaplinsky
v. New Hampshire, 1942, p. 572). And in Brandenburg v. Ohio (1969), the Court held that the Amendment
protects mere advocacy of “the use of force or of law violation,” but not advocacy that is aimed at “inciting
or producing imminent lawless action and is likely to incite or produce such action”1 (pp. 447-448).
The Court has invoked the Brandenburg standard very infrequently (Rohr, 2002, p. 10). Nevertheless, since
its Watts v. United States (1969) decision, the Court has included the content-based category of “true threats”
of physical violence as one of the forms of inammatory speech outside of First-Amendment protection. In
proscribing this speech category, the Court has reasoned that even political threats cannot prevail over the
government’s interest in “protecting individuals from three evils: “the fear of violence, . . . the disruption
that fear engenders, and . . . the possibility that the threatened violence will occur.” (R.A.V. v. City of St.
Paul, 1992, p. 388). In Watts, the defendant had announced at a public anti-Vietnam War protest that if the
government ever made him carry a rie, he would rst train it on then-President Lyndon B. Johnson. After
considering the context, the conditional nature of the statement, and the amused reaction of the listeners, the
Supreme Court (1969, p. 708) reversed the conviction, holding that the statement did not constitute a true
threat, but rather a “very crude[,] offensive method of stating a political opposition to the President.”
Despite the ruling, the Court fell short of dening “true threats” for the lower courts (Schauer, 2003, p. 211).
Predictably, Watts’s unsatisfying decision led to inconsistent rulings, even within the same court system
(e.g., United States v. Cassel, 2005, pp. 628-630). The Supreme Court’s subsequent decision in Virginia
v. Black (2003) missed the opportunity to solve the inconsistency. The case focused on a Virginia statute
that punished cross burning with intent to intimidate. Unlike Watts, the Black court dened true threats:
“statements where the speaker means to communicate . . . an intent to commit an act of unlawful violence
to a particular individual or individuals.” (p. 359). Despite this denition, the federal circuit courts have
continued diverging over how to adjudicate alleged threats (Fuller, 2015, p. 37), thus reinforcing a “chaotic
jurisprudence where . . . similar cases are decided dissimilarly” (Strasser, 2011, p. 386).
The confusion centers on which of the two approaches available applies to alleged true threats. The objective
approach begins by an inquiry into whether the speaker “intentionally or knowingly” communicated the
alleged threat, either directly to the victim or to a third party (Doe v. Pulaski, 2002, p. 624). This is the only
intent requirement for a true threat under an objective analysis. In other words, the analysis could convict the
speaker even if s/he did not intend to carry out the threat or had any capacity to do so (Planned Parenthood
v. American Coalition of Life Activists, 2002, p. 1075). If the defendant did intend to communicate the
1 For instance, in Hess v. Indiana ( 1973, p. 108), the Court held that the Amendment protected a speak who loudly said “We’ll take
the fucking street later” during an antiwar demonstration because that speech amounted to non-imminent “advocacy of illegal action”
(Hess v. Indiana, 1973, p. 108).
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Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 230
alleged threat, the government must then prove that a reasonable observer considers the speech a true threat,
regardless of whether the speaker meant for the speech “to be so understood” (United States v. Cassel, 2005,
p. 628). For example, in United States v. Himelwright (1994), the defendant had phoned two Post Ofce
hotlines because he was concerned that a hurricane was going to strike the area where his two daughters
lived. Some of his remarks in those calls included, “They worry about shootings in the Post Ofce, they
should worry about me if anything happens to my children because of the hurricane” (p. 781). The defendant
was then charged with having transmitted a wire communication with the intent to injure another. The
Third Circuit (1994, p. 782) held that to establish the violation, the government had to prove only that the
defendant acted “knowingly and willfully” when he made the calls, and –if he did– that his remarks “were
reasonably perceived as threatening bodily injury.” In other words, the government did not have to prove that
the defendant had intended the calls to be threatening or that he was able to carry out his threats at the time.
Conversely, the Ninth and Tenth Circuits are the only appellate courts that favor the stricter subjective-
intent standard. In United States v. Magleby (2005, p. 1139) the Tenth Circuit held that the First Amendment
does not protect a speaker when s/he intends to place a victim in fear of bodily harm or death, regardless of
whether s/he intends to carry out the threat. For its part, the Ninth Circuit ruled in United States v. Cassel
(2005, p. 633) that the speaker will be convicted “only upon proof that [… s/he] subjectively intended the
speech as a threat.” Therefore, because this standard focuses on the speaker ’s mental state, the Government
must meet a more onerous burden of proof when seeking a conviction under a threat statute.
In its most recent decision, Elonis v. United States (2015), the Supreme Court failed to take advantage of yet
another opportunity for guidance. In this case, the Court considered, for the rst time, the boundaries of free
speech on social media (Larson, 2015, p. 84). The case focused on Anthony Elonis’s postings on Facebook,
some of which the Court described as “crude, degrading, and violent” references about his estranged wife
(2015, p. 2005). For example, one of the postings read, “There’s one way to love you but a thousand ways to
kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts”
(2015, p. 2016). The district court had instructed the jury that the Government needed to prove only that a
reasonable person would perceive the Facebook posts as threats. Declining to address whether the postings
constituted a “true threat,” the Supreme Court (2015, p. 2012) vacated Elonis’s conviction and remanded the
case because the statue required proof that he must have intended to issue the threat.
To sum up, the Supreme Court’s decisions on threatening speech have failed to bring uniformity across
the federal circuit courts (Fuller, 2015, pp. 37-38). As a result, these lower courts remain divided over
which criterion to apply: (1) whether a reasonable person would consider the expression a true threat; or (2)
whether the speaker intended to threaten the hearer. The issue becomes more complicated in the educational
environment. To fulll their “legitimate interest in maintaining order . . . and protecting the well-being and
educational rights of its students,” (Kowalski v. Berkeley County Schools, 2011, p. 571), school districts have
joined the deterrence campaign against electronic harassment and bullying by implementing policies that
often incorporate the terms “threat” and “threatening” (Murrhee, 2010, p. 325). However, as the next section
will show, the implementation of these measures needs to be reconciled with the off-campus origin of some
non-school-sponsored communications, and the easiness with which electronic communications can reach
school property.
3 Student speech originating on school premises or during a school-sponsored activity
As Justice Alito argued in his concurrence in Morse v. Frederick (2007, p, 424), when public-school ofcials
regulate student speech, “they act as agents of the State.” For this reason, their speech regulations are subject
to First-Amendment review. The Supreme Court has held that public-school students do not relinquish their
First-Amendment right to free speech once they enter school premises (Tinker v. Des Moines Independent
Community School District, p. 1969, p. 506). At the same time, however, the Court has recognized that
this right must be tempered by “the special characteristics of the school environment.” (Hazelwood School
District v. Kuhlmeier, 1988, p. 266). In other words, because public schools are entrusted with “molding [the
nation’s] children into responsible and knowledgeable citizens” (J.S. ex rel. H.S. v. Bethlehem Area School
District, 2002, p. 651), ofcials may punish students for speech that would be constitutionally protected if
expressed by adults outside of the school environment.
Manuel Triano López
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Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 231
The Supreme Court has decided four main cases on the constitutional limits of student speech, but these
cases have dealt with non-threatening speech expressed at a public school or at a school-sponsored event
(D.J.M. ex rel. D.M. v. Hannibal Public School Dist. No. 60, 2011, p. 760). The Court’s jurisprudence begins
with Tinker v. Des Moines Independent Community School District (1969). Tinker focused on three public-
school students who had been suspended for wearing black armbands to class as a form of protest against
the U.S. military intervention in Vietnam. The Court held that the wearing of black armbands amounted to
protected symbolic speech –i.e., behavior conjoined with expression–, and that no disruption ensued because
of the armbands. According to Tinker’s standard, a public-school student may express his/her views on
controversial subjects while on school premises as long as the speech meets certain conditions: it (a) does not
disrupt or interfere “materially and substantially” with school activities; (a) does not lead school authorities
to foresee such substantial disruption or material interference; and (c) does not invade the rights of others (pp.
509, 514). In other words, Tinker required school authorities to show “substantial disruption, foreseeability
of a substantial disruption, or an invasion of the rights of others” to justify their punishment of student
speech (Wirmani, 2013, p. 770). The Supreme Court still has not claried the extent of the infringement-
upon-the-rights-of-others prong established in Tinker (Saxe v. State College Area School District, 2001, p.
217). Although the decision (1969, p. 508) did mention “the rights of other students to be secure and to be let
alone,” lower courts applying Tinker tend to pass over this prong when reviewing demeaning and threatening
speech by students, choosing instead the substantial-disruption prong.2
Seventeen years after Tinker, the Supreme Court rened its ruling by permitting school ofcials to punish
even nondisruptive student speech under certain conditions. Bethel School District No. 403 v. Fraser (1986)
focused on a sexually suggestive speech that a high school student had given before a school assembly.
Although no disruption ensued, the Court found for the school. In its analysis, the Court distinguished
the student’s lewd speech from the political message of the armbands in Tinker by reiterating the stronger
protection accorded political speech in First-Amendment jurisprudence (p. 680). The Court held that school
ofcials may punish lewd and indecent student speech that undermines the school’s primary duty to “inculcate
the habits and manners of civility” (pp. 681, 685).
Finally, in Hazelwood School District v. Kuhlmeier (1988), the Court continued broadening the school
ofcial’s powers to regulate student speech. The case focused on a teacher-supervised newspaper that was
part of a journalism class taught for credit during school hours. The administration had ordered a section to
be excised from the pre-publication copy partly because it considered the references to sexual activity and
birth control “inappropriate for some of the younger students” (p. 263). In the Court’s view, the case focused
on expressive activities–such as publications, and theatrical productions–that could be reasonably perceived
to bear the school’s imprimatur, i.e., activities that a reasonable observer would consider as the school’s own
speech (Saxe v. State College Area School District, 2001, p. 214). With these school-sponsored activities,
the Court continued, legitimate pedagogical concerns dictate that audience members not be exposed to
inappropriate material, and that the speaker’s views not be mistaken for the school’s. Applying this new
standard, the Court held that the discussion on sexual activity and birth control in the newspaper could have
been reasonably construed as being “inappropriate in a school-sponsored publication distributed to 14-year-
old freshmen” (p. 274).
To summarize the areas of student speech covered by these three Supreme Court cases: Hazelwood governs
school-sponsored speech; Fraser governs lewd, vulgar or profane speech; and Tinker governs all other
speech (Chandler v. McMinnville School District, 1992, p. 529). Morse v. Frederick (2007), the Court’s
fourth and last student-speech case, expanded the school ofcials’ authority by allowing them to punish a
narrow subset of student communications occurring off-campus. Specically, Morse dealt with a suspension
imposed on a student for waving a banner bearing the phrase “BONG HiTS 4 JESUS” at an off-campus,
school-approved event. Noting the reference to marijuana smoking in the expression “bong hits,” and the
important interest that the government has in deterring drug use among schoolchildren, the Court (2007, p.
397) held that schools may fulll their responsibility of safeguarding those under their tutelage by restricting
student speech that can reasonably be viewed as advocating illegal drug use. Joined by Justice Kennedy,
2 In a case involving a student wearing an anti-homosexuality T-shirt, Harper v. Poway Unied School District (2006), the appellate
court construed the “rights of others” prong in Tinker as encompassing the right to be free from emotional injury. However, the ruling
lacks precedential value –i.e., legal force to be followed by other courts– because the Supreme Court vacated it as moot.
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Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 232
Justice Alito (2007, p. 425) reasoned in his concurrence that “illegal drug use presents a grave and . . .unique
threat to the physical safety of students.”
Despite the reference to threats, lower courts do not tend to use Morse to review threatening speech
originating on campus. Specically, lower courts have been analyzing these on-campus expressions under
Tinker, Hazelwood, or Watts. For instance, in Boman v. Bluestem Unied School District No. 205 (2000), a
high-school student had created –while at school– an unsigned poster that she then hung on a door in a school
hallway. The poster contained sentences written in circles, such as “I’ll kill you if you don’t tell me who killed
my dog” (p. 1). Referencing Tinker and Hazelwood, the district court (2000, pp. 3-4), the court hypothesized
that if the student had either intended to convey a true threat or made other students think that the poster
was a true threat, the school could have appropriately punished her. However, based on the investigation
conducted by the school itself –which concluded that the student had not had a dog killed; that she had used
the artistic concept of “derangement” in her art work before; and that no students had complained about the
poster– the court found no justication for requiring the student to undergo a psychological evaluation.
A different approach to allegedly threatening speech originating on campus was used in Lovell v. ex rel.
Lovell v. Poway Unied School District (1996). In that case, a high-school student challenged her suspension
for having allegedly threatened to shoot a school guidance counselor. Frustrated at the possible denial of her
requested class schedule, the student had allegedly said to the counselor in the latter’s ofce, “If you don’t
give me this schedule change, I’m going to shoot you!” (p. 369). Following its own decision in United States
v. Orozco–Santillan (1990), the Ninth Court applied the true-threat doctrine from an objective perspective.
Therefore, the analysis centered on whether a “reasonable person” in the student’s position would foresee
that the counselor would interpret the statement as “as a serious expression of intent to harm or assault” (p.
372). The court concluded that the First Amendment did not protect the student’s statement because any
person could reasonably consider it “unequivocal and specic enough to convey a true threat,” especially
against the backdrop of pervasive violence in public schools at the time (p. 372).
In sum, lacking more precise Supreme Court guidance, lower courts have varied in their approach to allegedly
threatening language expressed by public-school students while on school premises. The next section will
show that this inconsistency is extended to student speech made off-campus. Specically, lower courts have
usually reviewed alleged off-campus threats made by students through either Tinker’s substantial-disruption
standard or the objective approach to Watts true-threat standard.
Non-school-sponsored student speech originating off school premises
With the exception of Morse’s narrow applicability to advocacy of illegal drug use, Tinker and its progeny
apply only to on-campus student speech, leaving lower courts the task of grappling with manifestations
occurring outside the school gates, including demeaning speech and alleged threats expressed by students
through electronic means. Predictably, these lower courts have not agreed on the standard to apply in these
situations (Dranoff, 2013, p. 652). Of the six appellate courts that have addressed speech that originates off-
campus, ve have held that Tinker applies, whereas the remaining court –the Third Circuit– remains split
(Bell v. Itawamba County School Board, 2015, p. 393). The other appellate courts (the First, Sixth, Seventh,
Tenth, Eleventh, and District of Columbia Circuits) still have not addressed this issue.
The choice of Tinker as one of the favored approaches to the detriment of Fraser, Hazelwood, and Morse
reects the typical circumstances surrounding a school’s disciplining of a student for derogatory or threatening
comments originating off-campus. For example, the state court reviewing J.S. ex rel. H.S. v. Bethlehem Area
School District (2002) applied Tinker to the expulsion of a middle-school student for derogatory posts about
a teacher and a principal on a website that he had compiled from home on his own time. Despite the “lewd,
vulgar and offensive” references in the speech, the court (2002, pp. 668-669) applied Tinker because the
student’s website was neither part of a school project nor sponsored by the school. Likewise, a strict read of
Morse does not lend itself to the analysis of demeaning or threatening speech occurring off-campus because
such expressions do not tend to advocate illegal drug use.3
3 Ponce v. Socorro Independent School District (2007) is one of the very few cases in which a court has extended Morse’s narrow
ruling on illegal drug use to certain threats of school violence. The case revolved around a rst-person notebook diary in which the
author –a high-school student– had detailed a plan for a mass shooting at the school. The student shared the contents of the notebook
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Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 233
Nevertheless, some appellate courts that have agreed on applying Tinker to off-campus speech have
advocated different approaches (Bell v. Itawamba County School Board, 2015, p. 395). The Third Circuit
Court of Appeals, in particular, reects most vividly the judicial inconsistency about the reach of school
ofcials when it comes to student speech in the era of the Internet, smartphones, and digital social media.
In two cases decided on the same day, the court differed on its approach to the same question: whether the
First-Amendment allows school ofcials to discipline students for their off-campus speech. First, in J.S. ex
rel. Snyder v. Blue Mountain School District (2011) focused on the expulsion of a middle school student for
creating, outside of school hours and on her home computer, a fake MySpace prole which included a picture
of her principal, and vulgar insinuations –without identifying the principal– that he was engaging in sexual
misconduct. The student did not send the prole to any school employees, but made it available to some
classmates. Although school ofcials admitted that the student’s speech –that is, the fake prole– did not
result in a substantial disruption, they contended that the speech might reasonably have led them to forecast
such disruption (p. 928). In holding that the expulsion violated the student’s First-Amendment rights, the
majority (2011, p. 926) assumed –without deciding– that Tinkers substantial-disruption test applies to off-
campus speech. Applying Tinker, the majority (2011, pp. 929, 931) concluded that the school could not have
reasonably foreseen substantial disruption of or material interference with school operations as a result of
a prole so nonsensical that no reasonable person could have taken its content seriously. However, in the
second case, Layshock v. Hermitage School District (2011, p. 220), the same court indicated the opposite,
i.e., that Tinker’s disruption standard does not apply to off-campus Internet speech. In that case, a public high-
school student had typed “vulgar and offensive” language while building a fake prole of his principal on the
social-networking website MySpace (p. 210). The student had created the prole using her grandmother ’s
computer at her house during non-school hours. Even though the speech did not disrupt school operation, the
student was suspended. The Third Circuit ruled that school ofcials may not overextend the reach of their
authority into a student’s grandmother’s home after school hours (p. 216).
Compounding the judicial inconsistency, some appellate courts have applied Tinker to student speech
originating off-campus only after the speech passes a threshold test (Wynar v. Douglas County School
District, 2013, p. 1068, summarizing this approach by the Second, Fourth, and Eighth Circuits). For instance,
Thomas v. Board of Education, Granville Central School District, (1979, p. 1046) focused on the suspension
of a group of high-school students for publishing an allegedly “morally offensive, indecent, and obscene”
newspaper lampooning some school gures. In preparing the publication, the students had mostly worked
off-campus and after school hours. The nal copy –which the students published and distributed to their
peers off-campus– contained a disclaimer for any copies found on school grounds. In its decision, the Second
Circuit (1979, p. 1050) held that the suspension violated the students’ First-Amendment rights because
school ofcials exercised their authority “out of the school yard and into the general community,” where the
Amendment shields speakers at its most strongly from governmental regulations. In its decision, however,
the Second Circuit did not establish that school ofcials may never discipline off-campus student speech. In
fact, the court (1979, p. 1052, n.17) admitted the possibility of legitimatizing school discipline for student
expression originating “from some remote locale” when it causes “material and substantial disruption within
the school.” That possibility materialized in Doninger v. Niehoff (2008). In that case, the court concluded
that a public high school was entitled to discipline a student for posting derogatory language against school
administrators on her public blog. Despite the off-campus origin of the speech, the court found it to qualify as
on-campus speech for Tinker purposes because of its school-related content, and because it was reasonably
foreseeable that fellow students would have viewed the blog and that school administrators would have
become aware of it.
In Kowalski v. Berkeley County Schools (2011, p. 573), the Fourth Circuit partly relied on Doninger’s
foreseeability test, while also introducing its own “nexus” threshold before applying Tinker to off-campus
student speech. The case focused on whether the First Amendment allowed a public school to suspend a
with a fellow student, who, in turn, informed one of the teachers. As a result, the school transferred the student to an alternative
education program. The Fifth Circuit (2007, p. 766) held that the First Amendment did not protect the student’s threating language
because it posed “a direct threat to the physical safety of the school population.” Therefore, by this standard, school ofcials would
not need to show actual or reasonably foreseeable disruption of the learning environment to justify a disciplinary action as a result of
the speech (2007, p. 769). However, commentators such as Calvert (2008, p. 5), and McDonough (2103, p. 643) criticize this ruling
for extending Morse’s narrow ruling farther than intended.
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Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 234
student named Kara Kowalski for creating from her home computer a webpage ridiculing a fellow female
student. Citing the Second Circuit’s decision in Doninger (2008), the court (2011, p. 574) held that it was
foreseeable that Kowalski’s webpage would reach the school through electronic devices, given that the
posters and the ridiculed student attended the school. Furthermore, the court (2011, p. 572) reasoned that
Tinker’s substantial-disruption standard allows a public school to regulate student speech that interferes with
the school’s mission of providing “a safe school environment conducive to learning,” including protecting
students from harassment and bullying. In its analysis, the court (2011, p. 576) noted that Kowalski had
encouraged other students to contribute to her “mean-spirited and hateful” attack, knowing that the defamatory
accusations and edited pictures posted to the webpage would impair the ridiculed student’s ability to have “a
suitable learning experience.” In other words, the court (2011, p. 577) had found a nexus between Kowalski’s
speech and the school’s legitimate interests in preserving an appropriate pedagogical environment.
This judicial inconsistency also surfaces when the abusive speech rises to the level of potential threat of
violence. In Wisniewski v. Board of Education of Weedsport Central School District (2007, p. 38), the Second
Circuit held that school authorities have “broader authority to sanction student speech” than Wattss true-
threat standard allows. For this reason, the court used only Tinker’s standard to evaluate the alleged threat.
The case focused on the suspension of a middle-school student for sending from his parents’ home computer
an instant-message icon to friends and classmates suggesting that a named teacher should be shot and killed.
Applying Tinker, the court (2007, p. 40) considered the foreseeability of both communication to school
authorities and the teacher, and the risk of substantial disruption of work and discipline at the school as a
result of the icon. The court concluded that due to the extensive distribution of the icon (over a three-week
period) and the intended recipients, a reasonable person would foresee that school ofcials and the teacher
would learn of the icon, and that the icon would pose “a risk of substantial disruption within the school
environment” (2007, p. 40).
The Fifth Circuit has declined to adopt a threshold rule, applying Tinker according to the particular
circumstances of each case. In Bell v. Itawamba County School Board (2015, p. 396), the court applied Tinker’s
substantial-disruption standard because the student had intentionally directed at the school community
speech that ofcials would reasonably have interpreted as threatening, harassing, and intimidating, even
when the student produced and disseminated such speech outside school premises without school resources.
Specically, the case focused on a rap recording that a high-school senior had made off-campus, and then
posted on his Facebook page and YouTube. The recording contained “threatening, harassing, and intimidating
language” directed at two teachers-coaches, such as “I’m going to hit you with my [Ruger pistol]” (2015, p.
384). As a result, the school suspended him and transferred the student to an alternative high school. Having
held that Tinker applied in these circumstances, the court addressed whether the recording caused either an
actual disruption or a reasonably forecast disruption. The court (2015, pp. 398-399) found that the recording
met the second prong because the possible consequences included the death of two teachers: “[t]he speech
pertained directly to events occurring at school, identied the two teachers by name, and was understood by
. . . neutral, third parties as threatening.”
Likewise, the Ninth Circuit claried in Wynar v. Douglas County School District (p. 2013, p. 1069) that it
has opted for not imposing “a one-size ts all approach” –i.e., Tinker– to off-campus student speech due to
the many variables involved. For example, the court (2013, p. 1068) reasoned that it had applied Tinker in its
previous decision in LaVine v. Blaine School District (2001) because the speaker had brought the speech the
school. LaVine focused on the expulsion of a high school student for showing a teacher a rst-person poem
that he had written off-campus. In the poem the student had mentioned suicidal thoughts, and the shooting
of fellow students (p. 990). The Ninth Circuit (2001, p. 989) rst established that the poem was subject
to Tinker because its content fell outside of Frazer and Hazelwood. In other words, the poem was neither
vulgar, lewd, obscene or offensive; nor was it an assignment or a publication that a reasonable observer
could have interpreted as bearing the school’s approval. Applying Tinker, the Ninth Circuit considered all the
relevant facts that might have reasonably led school ofcials to forecast substantial disruption of or material
interference with school activities. The Court concluded that the ofcials did not violate the student’s First-
Amendment rights because a combination of factors “gave them a reasonable basis” for the expulsion (p.
989), chiey the student’s history of disciplinary problems; the suicidal ideations that he had shared with
a school counselor; the domestic dispute that led him to move out of his family home, and press charges
Manuel Triano López
Off-campus Threatening Speech in the United States of America: to what Extent can Public Schools ...?
Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 235
against his father; and the actual shootings that had occurred at other schools around the time of the incident.
School ofcials, therefore, could have reasonably “forecast substantial disruption of or material interference
with school activities,” namely that the student was intending to injure himself or others (2001, p. 990).
Not all courts have assessed alleged threats made off-campus through Tinker. Some have evaluated student
speech about the killing of a school ofcial or fellow student by extending Watts’s true-threat standard into
the school environment (Wisniewski v. Board of Education of Weedsport Central School District, 2007, p.
38, briey discussing this approach before applying Tinker instead.) Often, courts using Watts opt for the
objective approach, i.e., they focus on how a reasonable person would interpret the allegedly threatening
speech (Wirmani, 2013, p. 775). For example, the Eighth Circuit’s decision in Doe v. Pulaski (2002) did not
focus on electronic communications, but the court’s rationale helps understand how the court would most
likely analyze such non-school-sponsored communications when they are initiated off-campus. In Pulaski,
the parents of an eighth-grade student claimed a violation of his First-Amendment rights as a result of his
expulsion for having written a letter at home describing how he would rape and murder a female classmate.
Applying the objective approach to Watts, the court (2002, p. 624) rst set out to determine whether the student
had “intentionally or knowingly” communicated the content of the letter to either the female classmate (the
object of the alleged threat) or to a third party. The court (2002, p. 624) concluded that the speech satised
this requirement because the student had allowed his best friend –a third party– to read the latter. The court
then addressed whether a reasonable person would foresee that the female student –the ultimate recipient of
the student’s letter– would interpret the content of the letter “as a serious expression” of an intent to harm or
injure her (2002 p. 624). The court (2002, p. 625) concluded that most, if not all, normal thirteen-year-old
girls would fear for their physical well-being if they had received a letter describing her “as a ‘bitch,’ ‘slut,’
‘ass,’ and a ‘whore’ over 80 times in only four pages,” and alerting her not to go to sleep because the male
student would be “under her bed waiting to kill her with a knife.”
Finally, courts may end up deciding the same case on Tinker’s substantial-disruption and Watts’ true-threat
standards. For example, in D.J.M. ex rel. D.M. v. Hannibal Public School District No. 60 (2011), a public high
school student had sent, from his home computer, instant messages to some friends in which he expressed
his “desire” to shoot some classmates. One of these friends relayed these messages to school authorities,
who then suspended the student. The Eighth Circuit held that the student’s out-of-school statements were not
protected because they did not pass either the true-threat analysis or Tinker’s substantial disruption threshold.
Concerning Watts’ true-threat analysis, the court followed its earlier decision in Doe v. Pulaski County
Special School District (2002, p. 622) by analyzing the alleged threat “from the viewpoint of a reasonable
recipient.” In the court’s opinion, the alarm of school authorities was justied by the student’s comment that
certain classmates “would be the rst to die,” and that he could borrow a handgun. Concerning Tinker, the
court (2011, p. 766) held that it was “reasonably foreseeable” that the student’s messages “would be brought
to the attention of school authorities.” Furthermore, the court (2011, p. 766) found that the messages had
“substantially disrupted” the school operations because authorities spent “considerable time” ensuring that
suitable safety measures were implemented. The district court in Mahaffey v. Aldrich (2002) also analyzed
an off-campus website under Tinker and Watts. The case revolved around a student’s suspension for posting
to an Internet website a list of people he wished to die. Applying Tinker, the court (2002, p. 784) assumed
without holding that the list had been partly created on school computers, and then concluded that the
website neither interfered with the work of the school nor impinged on other student’s rights. Applying the
reasonable-observer approach to Watts, the court concluded (2002, p. 786) that the statements on the website
did not constitute true threats because even though other students saw those statements, the student did not
communicate the existence of the website to anyone.
4 Conclusions
The ubiquity of electronic devices, digital social media, and the Internet in the students’ lives has blurred
the on-campus/-off campus distinction that seemed clear-cut with Tinker and its progeny (Bell v. Itawamba
County School Board, 2015, pp. 392, 395-396). With the aid of these technological advances, students are now
able to disseminate and access in real time a large number of communications about members of the school
community from off-campus locations. Despite their off-campus origin, these electronic communications
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Revista de Llengua i Dret, Journal of Language and Law, núm. 66, 2016 236
can easily cross the physical boundaries of the school and reach a large number of intended and unintended
students and educators, some of whom may react with alarm at the demeaning and violent overtones of some
of the messages.
Given the potential of these communications for either disrupting the learning environment or exacting a
psychological and physical toll on their victims, courts must allow school ofcials some breathing room to
address a threat of physical violence – as well as harassment and bullying– against members of the school
community without worrying about being ensnared in protracted and costly litigation with the students’
parents (Ponce v. Socorro Independent School District, 2007, p. 772). Courts, therefore, must give school
ofcials some regulatory powers so that they may fulll their “paramount need” to protect the school
community “from threats, intimidation, and harassment” (Bell v. Itawamba County School Board, 2015, p.
393).
At the same time, school ofcials should not be empowered so much as to usurp the role of parents in bringing
up their children –not to mention inhibit student speech otherwise protected by the First Amendment– by
punishing students for off-campus speech that never makes its way onto campus (Thomas v. Board of
Education Granville Central School District (1979, p. 1051). Furthermore, not every instance of off-campus
student speech that ends up on school premises should be treated either as proscribable on-campus speech
under Tinker or as a true threat under Watts. For example, in Porter v. Ascension Parish School Board (2004,
p. 615), the Fifth Circuit held that the First Amendment protected a student who had drawn from his home a
violent school siege. The drawing did not constitute on-campus speech under Tinker because the student had
stored the drawing at his home for two years until his brother inadvertently brought it to campus.
Understandably, in the absence of more precise guidance by the Supreme Court, lower courts are facing
great difculties establishing a general standard for “a myriad of circumstances” surrounding student speech
expressed off-campus (Wynar v. Douglas County School District, 2013, p. 1069). Some courts apply Tinker’s
substantial-disruption prong under different guises; some apply Watts true-threat standard; some apply both
standards; and some –like the Fifth and Ninth Circuits– decline to provide a general rule for the courts under
their jurisdiction, opting instead for guidance tailored to the particular circumstances of the case. This last
ad-hoc approach sounds preferable because it saves courts from making clear-cut pronouncements only to
overturn them soon after as a result of the rapidly evolving nature of electronic communications. Regardless
of the validity of each judicial approach, school ofcials are advised to follow closely the rulings of the
courts under their respective jurisdiction so that school policies and disciplinary actions help them train
the “nation’s youth to become responsible participants in a self-governing society” (Thomas v. Board of
Education Granville Central School District (1979, p. 1044) without violating these students’ right to free
speech.
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