Mike Grygiel, from Greenberg Traurig (law firm), presented on this for the Intellectual Freedom Roundtable. He is a first amendment lawyer.
Grygiel decided to focus on The digital speech rights of public high school students. The law is so unsettled that there is confusion. The law is predicated on physical boundaries and other things that no longer matter.
The US Supreme Court had ruled on this right in regards to students, first in the 1960s (Tinkers). The Tinkers wore black armbands to school, in order to protest the Vietnam war. Decided in1969. The school's suspension of the students was a violation of their first amendment rights. Students do not shed their rights of expression at the school house gate. The test is content neutral. Okay as long as the speech is not disruptive. The ruling is very speech protective. Provocative speech is okay.
Outside of the school, students are just like every other citizen.
Next case - Matthew Fraser, who gives an inappropriate (sexualized) speech at a mandatory school assembly for students of wide age ranges. The ruling was that schools can punish a student for crude speech. The school is charged with teaches students about their behavior. The decision was narrow and focuses on three points. This speech in other settings would have been protected by first amendment rights. In this case, what was said was important (content based).
Hazelwood - deals with a school newspaper, which was dealing with sensitive social issues. The Supreme Court ruled that it wasn't the students speaking, it was the organization (the school). In this case, the school can suppress the speech as long as it is reasonable related to pedagogical concern.
Morse v. Frederick - had to do with a banner that a student unfurled outside of the school building, but during the school day. This isn't the school speaking. It isn't related to school work. However, this would be like a field trip. The fact that the speech was about the illegal use of drugs played into the ruling. The content of the speech was important. In Tinker, content was not important, yet in this case content (and viewpoint) was important.
Judge Alito - Education mission cannot become a rule for suppression free speech of students. He does not like viewpoint based discrimination. This should not impact student rights to discuss controversial issues and political speech.
Morse v. Frederick, http://www.law.cornell.edu/supremecourt/text/433/347
In the discussion, Board of Education v. Pico was mentioned, http://www.law.cornell.edu/supremecourt/text/457/853
Fast forward to Weedsport, NY, where a student has a closed instant messaging buddy list, with an unfortunate icon about a teacher. Another student printed out the icon and shows it to the teacher. The student was then suspended during the investigation. This "speech" was not occurring in the school. The investigation concluded that it was dumb speech and that no harm was meant. However, then the school suspended him for six months. Our thinking after a Columbine affected this.
The case went to the Second Circuit, http://caselaw.findlaw.com/us-2nd-circuit/1466801.html and was decided in 2007. This has now set the standard for student digital speech. Other courts have adopted this approach. "...if it is reasonable that it could come to the attention of school authorities..." Material evidence of disruption. Tinker applies to this case (precedent).
Doninger - a high school junior. An engaged and excellent student. The students are sponsoring a battle of the bands. The school changes the date, because a particular teacher could not be there. She blogged that night about the incident and encourages fellow students to take action.
Later, the superintendent learns of her blog post and the student is punished. When it goes to court, the 2nd Circuit applies Wisniewski. A tremendous and unprecedented expansion of the school's control over student freedom of speech. The language used was hardly conducive to conflict resolution.
What is the scope of digital freedom of speech rights of public school students?
These occurred before the Dignity for All Students Act (anti-bullying, anti-harassment). How does that apply?
A question was asked about a student bringing religious text to school and the student being punished. That is both freedom of speech and religious freedom.
Grygiel Is currently writing a paper/article on this topic.
Private schools are not subject to the first amendment. It is not the government (public school). Private schools can limit communication.