Student Speech Rights in the Digital Age
Student Speech Rights in the Digital Age
Source: Boston College Law School Faculty Papers
The dramatic increase in the number of student speech cases involving the digital media begs for a closer examination of the scope of school officials’ authority to censor the expression of minors as well as the scope of juvenile speech rights generally. Permitting schools to restrict student speech in the digital media would necessarily interfere with the free speech rights juveniles enjoy when they are outside the schoolhouse gates. Those scholars who support censorship to protect children do not contend that children fall entirely outside of the First Amendment, but they have argued that they are entitled to lesser or reduced rights. Some point to the line of Court decisions upholding efforts to protect minors from sexually explicit expression as evidence that minors have limited speech rights. Others contend that the theoretical justifications for the First Amendment — the promotion of self-government, the search for truth in the marketplace of ideas, and the fostering of autonomy and self-fulfillment — apply with limited force to minors and warrant reduced protection. Various members of the Court have suggested that the need to defer to school officials outweighs student speech rights due to the need to support parental decision-making, the in loco parentis doctrine, the inherent differences between children and adults, and the so-called special characteristics of the school environment.
This Article takes a close look at all of the various justifications for limiting juvenile speech rights and concludes that none of them supports granting schools broad authority to limiting student speech in the digital media, even with respect to violent or harassing expression. Furthermore, this Article argues the tests that most courts and commentators have applied to determine whether student speech falls within a school’s authority to act grant schools far too much authority to restrict juvenile speech rights in general. Even the application of Tinker’s material disruption test is troubling because that standard was never designed to deal with digital expression. The Article concludes the primary approach that schools should take to most digital speech is not to punish or restrict such expression, but instead to educate their students about how to use digital media responsibly.
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