No need to tinker with Tinker
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Iowa’s place in judicial history will forever be cemented with Tinker v. Des Moines, the Supreme Court ruling that students do not lose their First Amendment right to free speech in school.
But that decision came down in 1969, and rules that worked in an age of armband-wearing war protestors leaves big gaps in an age when students use Facebook or YouTube in their own homes to say nasty things about their school and the people in it.
A University of Iowa College of Law researcher believes the principles of Tinker can be adapted by courts to work just fine in the social media era, however. Aaron Hersh, a third year law student, says courts can interpret Tinker in such a way that guarantees students’ First Amendment free speech online while keeping school disruptions to a minimum.
“School discipline should be reserved for the instances in which the online expression fundamentally impairs the academic function of the school, as opposed to the ability of school officials to be free from derision,” Hersh writes in his analysis, “Rehabilitating Tinker,” published in the current issue of the Iowa Law Review.
Tinker v. Des Moines was a landmark 1969 decision that found the Des Moines school district had wrongly suspended three high school and junior high students for refusing to remove black armbands they wore to protest the Vietnam War. The court set a rule that students do not lose their First Amendment freedom of speech at the schoolhouse gate, and that schools can suspend students only for activity that substantially disrupts or interferes with school activities.
But Hersh says that Tinker and subsequent Supreme Court decisions that have modified it were not designed for a social media world, and lower courts in recent years have struggled to adapt it in cases in which students have engaged in potentially disruptive activity on social media from off school grounds. For instance, in one case, an appeals court upheld the suspension of a school’s student council member who wrote a blog post urging people to call her school to protest the cancelation of a concert, a post that led to dozens of phone calls that caused a headache for administrators.
But in two separate other cases, an appeals court overturned the suspension of students who created Facebook pages that made fun of their school principals and referred to them using foul language.
Hersh believes these decisions are the result of courts trying to apply a decision dating from the 1960s to a situation using 21st century technology. At issue, he says, is the rule laid out by Tinker that protects student conduct whether “in class or out of it.” Courts have not yet defined whether “out of” class applies to a student who writes something on a Facebook page from her own home that has a disruptive effect on the school.
Hersh thinks that the rules laid out in Tinker can easily enough be translated in a way that suits a more modern age by giving full freedom of expression online and off campus, as laid out in the Des Moines decision. He believes the only exceptions should be online conduct that is lewd or vulgar and causes a demonstrably significant disruption in school activities; or that targets other students for bullying or harassment.
Online comments that criticize or even mock school administrators, he says, should be protected by the courts.
“School officials, unlike students targeted for harassment……are less likely to feel the social stigma and pain associated with bullying because they are in positions more sheltered from abuse,” Hersh writes.