The less information available, the more likely courts will circumscribe constitutional rights because dire predictions and rhetorical flourish can make the future seem far worse than reality.  Of course, the obverse is that reality often shows that it was no big deal to begin with, and that preservation of constitutional rights isn’t the end of the world.

The 3d Circuit’s en banc decisions in two school free speech cases, where students were disciplined for creating online parody pages on Myspace in the names of their principals, out of school speech that was juvenile, crude and offensive to the principles involved.  Such disrespect could not go unpunished.

In Layshock v. Hermitage School District, high school student Jason Layshock put up a photo of his principal and answered questions as follows:

Birthday: too drunk to remember
Are you a health freak: big steroid freak
In the past month have you smoked: big blunt
In the past month have you been on pills: big pills
In the past month have you gone Skinny Dipping: big lake, not big dick
In the past month have you Stolen Anything: big keg . . . .

Vicious stuff, right?

In J.S. v. Blue Mountain School District, a middle school student used a photo and filled the page with “vulgar sexual references and profanity,” as only a middle schooler can.  In both instances the pages were created outside of school.

As Avery Doninger learned, the exercise of speech outside the school house gates is hardly an assurance that the school won’t exact it’s pound of flesh.  As  Dan Solove explains:

The prevailing standard for when schools can impose discipline for off-campus speech was developed from the U.S. Supreme Court’s decision Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  When off-campus speech causes a material and substantial disruption of the school environment, the school can impose discipline.  Otherwise, off-campus speech would receive full First Amendment free speech protections (unless it were a threat). This is known as the “substantial disruption” standard.

Tinker is another in a long line of cases that rewards the party who has the least amount of proof available.  In both of the cases before the 3d Circuit, the schools lost.  As it turned out, neither of the Myspace page parodies amounted to much of anything.  A few kids giggled and snickered, and then everybody went back to class and did their school work.  Whether it wasn’t that funny or students understood it to be a joke, ridiculing the principle because that’s what students do, it barely made a ripple in reality.  The only person who suffered a “substantial disruption” was the target of the speech, the respective principles, whose egos were bruised.

Had reality not interfered with a darn good argument, however, the decisions would have easily done a Doninger and gone the other way.  Lawyers for the districts would argue at length, in vivid color, how any characterization of the beloved and respected educator would wreak havoc with the functioning of the district, leaving hundreds of students to wander the halls, bumping into one another, learning nothing and becoming bums and drug addicts; a generation lost to the parents of the Hermitage School District and children gone bad in the Blue Mountain schools.

Except both school districts were constrained to concede that there was no “substantial disruption.”  In fact, aside from the school’s “reaction,” there was no disruption at all.  Speech was had.  Sexual references were made.  A quick giggle, then . . .  nothing. 

Still, the court couldn’t bring itself to reach the obvious conclusion, reaffirming the pre-emptive incentive of ignorance in Tinker:

The court did, however, agree that a substantial disruption need not actually occur and that a reasonable forecast of a substantial disruption would have been sufficient to impose discipline:

Although the burden is on school authorities to meet Tinker’s requirements to abridge student First Amendment rights, the School District need not prove with absolute certainty that substantial disruption will occur. Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008) (holding that Tinker does not require “actual disruption to justify a restraint on student speech”); Lowery v. Euverard, 497 F.3d 584, 591-92 (6th Cir. 2007) (“Tinker does not require school officials to wait until the horse has left the barn before closing the door. . . . [It] does not require certainty, only that the forecast of substantial disruption be reasonable.”); LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (“Tinker does not require school officials to wait until disruption actually occurs before they may act.”).

From the perspective of school administrators, any speech that doesn’t please them will most assuredly cause a substantial disruption, thereby justifying their stifling of student speech and imposition of punishment in advance of the world ending. 

In the olden days, before the internet, this wasn’t nearly as much of a problem, as speech outside the school yard gates could more readily be distinguished, and hence protected, from what happened in the hallways.  But the line isn’t as clear anymore.  Solove sees the Tinker standard as a viable compromise:

The Internet is making the line between off-campus and on-campus speech is increasingly more blurry.  But a line is important to maintain, or else a school’s power to regulate student speech would extend way too far beyond the schoolhouse gate.  The substantial disruption standard is a meaningful compromise, where school officials must make a compelling demonstration how off-campus speech interferes with life on campus.  School officials do not have to wait for an actual disruption if one is reasonably predictable.  But the lesson drawn from these cases is that schools must document a really compelling case, one that is not based on standard speculations or very loose linkages between the speech and on-campus activities.  Real disruption, beyond occasional chatter and beyond the ridicule of school officials is required.

Both the caselaw, and life in the courtroom, suggest that this is naive.  It’s hardly difficult to cobble together allegations of dire consequences stemming from online speech, where the student body rises as one and ridicules a school administrator, refusing to follow their command, trashing the school and ultimately devolving into some Lord of the Flies fantasy.  All it takes is a compelling story, unconstrained by evidence that none of it ever happened.  Telling a good story is a lawyer’s stock in trade, Refuting a story that never happened is much harder.

Given the nature of the internet, coupled with juvenile sense of humor, crude and vulgar speech directed at school officials on a social media website isn’t likely to go away, and indeed, as each no class of students discovers that they can string together a bunch of curses and sexual references directed at teachers, principals, superintendents, the typical objects of school children’s ire and rebelion, this can only get worse.

Considering the sort of stuff that kids are seeing online from the moment of puberty onward, they realize all too well how lame most of this is, and utterly inconsequential as far as disrupting the functioning of schools.  It’s the elders, from principals to judges, who don’t grasp how little this matters to kids, how trivial the impact will be to education and their lives.  There are a million “funny” and vulgar things online, and growing by the moment.  Free speech parodies by kids are a quick chuckle, if that, before they move on to the next FunnyJunk video or meme.

Yet the Tinker standard, persists, empowering school officials to punish students for disruption that only exists in their hurt imagination, backed up by judges who refuse to question dire predictions that never seem to bear out in reality.