Assessing the Current Jurisprudence

Introduction

This chapter reviews the state of the off-campus student-speech jurisprudence. It discusses examples of lower courts that recognize school-censorship authority in off-campus settings, including the nineteenth century decision of the Supreme Court of Vermont which recognized such authority during student transit to and from school (Lander v. Seaver, 1859). It also discusses examples of lower courts that confine school-censorship authority to the school campus, giving students broad liberty to express themselves off-campus. The chapter highlights the fact that, some courts find the identity of the speaker as a student and that of the target as a teacher, administrator or student sufficient to trigger schools’ off-campus censorship authority. Other courts, however, require school officials to establish a more substantive nexus between the school and the off-campus student speech before censoring the speech. This nexus is customarily satisfied through the material and substantial disruption test – one of the United States Supreme Court’s student-speech tests.

Even though several lower courts use the material and substantial disruption test in reviewing off-campus student speech, unfortunately, there is inconsistency among the courts on whether and how this test and others apply to off-campus speech. Many of the courts that apply the Supreme Court’s student-speech tests to off-campus speech struggle with whether the tests should be extended from their on-campus contexts to off-campus speech. In order to avoid dealing with this difference in contexts, various courts opt not to distinguish off-campus speech from on-campus speech. This lack of distinction effectively allows the courts to apply the student-speech tests without regard for geography. It also empowers school officials to censor off-campus speech as they would on-campus speech. The discussion in the chapter further shows that some courts empower censorship by authorizing school officials to convert off-campus speech into on-campus speech. Courts using this approach essentially avoid dealing with the difficult question of whether the Supreme Court’s student-speech tests should apply to off-campus speech. Beyond the discussion of the student-speech tests, the chapter highlights the fact that some courts use the true-threat doctrine (rather than the material and substantial disruption test) to analyze off-campus speech that evinces intent to cause harm at a school.

This chapter presents tabulated information on the lower courts’ application of the Supreme Court’s student-speech tests to off-campus speech. Additionally, it reports on the proportion of off-campus speech cases that have been reviewed under the true-threat doctrine, the fighting-words doctrine, defamation law and the Miller-test approach to obscenity. It also reports on the number of courts that have distinguished (and those that have failed to distinguish) on-campus speech from off-campus speech. Recall, the discussions of student-censorship incidents in chapters eleven and twelve revealed that student use of school resource or time plays a role in the judicial analysis of off-campus speech. The discussions also showed that courts give consideration to the student-speaker’s (as opposed to a third party) role in bringing the speech to the school’s attention. Similarly, when the speaker accesses the speech on-campus, some courts tend to view the speech as on-campus speech. This chapter presents data on the courts that embrace these conclusions in order to determine the prevalence of these conclusions. Moreover, as earlier discussions revealed, some courts impose a reasonable-foreseeability standard that schools must satisfy in order to censor off-campus speech. This chapter provides data on the courts using this requirement. It also underscores the winning party in cases where speech targeted school officials and those where speech targeted students. Finally, it presents data on the number of cases adjudicated in federal courts and state courts.