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Running head: OFF-CAMPUS SPEECH 1

Off-Campus Speech and the First Amendment

Kaylie Connaughty

University of Wisconsin-La Crosse


OFF-CAMPUS SPEECH 2

Introduction
As stated in the famous case, Tinker v. Des Moines Independent Community School

District, students do not "shed their constitutional rights to freedom of speech and expression at

the schoolhouse gate" (Fronk, 2010). But what happens when students say or write harmful,

hurtful, or disruptive speech off-campus? Is online, cyberspeech covered by the First

Amendment? What happens when off-campus speech is brought on-campus by another student?

And, finally, what if students have offensive off-campus speech, but just blocks away from the

campus itselfdoes that constitute punishment? Controversy has continuously surrounded

student free speech issues in public schools and higher education. Specifically, in September of

2016, a lewd and offensive banner was hung near the University of Wisconsin-La Crosse (UWL)

campus that stated, Free Cream Pies w/ Valid Freshman ID (O'Brien, 2016). The incident

immediately sparked concern and a social media feud, which made the issue a campus concern.

This paper will address significant and historic First Amendment cases, how these cases apply in

an educational setting, and finally whether these cases can shed light on the whether the UWL

banner incident is protected under students First Amendment right to free speech in public

institutions of higher education.


Significant Court Cases
Since no Supreme Court cases have directly dealt with higher education off-campus

student speech, it is up to the lower courts to decide how to handle each situation on a

case by case basis. Four cases are commonly mentioned as "turning points" in student free

speech issues: Tinker v. Des Moines Independent Community School District, Bethel School

District No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick

(Cordes, 2009).
Tinker v. Des Moines Independent Community School District
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In Tinker (1969), students in Des Moines planned to wear black armbands to their school

to protest the Vietnam War. Once school administrators learned about this, they invoked a policy

stating that any armband would be asked to be removed. Refusing to do so would result in

suspension. Through their parents, students sued the school for violating their First Amendment

right to free speech and expression. The Supreme Court ruled in favor of the students, stating that

protesting the Vietnam War in a non-disruptive fashion is indeed a violation of their First

Amendment rights (Cordes, 2009 and Fronk, 2010). However, the Court also stated that public

schools have special characteristics that need to be addressed on a case by case basis. Schools do

have the right to control conduct and maintain order so that there is no disruption of an

educational mission (Willard, 2012). Tinker protests were not disruptive, and the fear of a

disruption is not enough to prevent speech (Cordes, 2009). The "material and substantial"

disruption test has been consistently used in court cases regarding cyberspeech and off-campus

speech since that time. In addition, the court also discussed viewpoint discrimination. In other

words, they decided that administrators cannot censor speech just because it may be an

unpopular viewpoint (Adamovich, 2012).


Bethel School District No. 403 v. Fraser
In Bethel School District No. 403 v. Fraser, a student gave a lewd speech at a school

assembly. Teachers read the speech beforehand and warned the student that it was inappropriate

and should not be read, but the student disregarded the advice and went on to deliver the speech.

The speech was, "filled with sexual innuendos and graphic references" (Cordes, 2009, p. 664).

Students in the audience reacted in many different ways. Some students hollered in approval

while making obscene gestures. Others looked embarrassed and astonished. The principal met

with the student immediately the next day and gave him the punishment of a three-day

suspension (Cordes, 2009 and Willard, 2012). In opposition, the student sued the school for
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violating his First Amendment rights, as recognized by Tinker. The Supreme Court, however,

ruled in favor of the school, stating that, "...even though students have a right 'to advocate

unpopular and controversial views in schools,' this had to be balanced against society's 'interest

in teaching students the boundaries of socially appropriate behavior'" (Cordes, 2009, p. 664).

Although students do have the right to express themselves in a non-disruptive way, as

determined in Tinker, the Court noted that certain types of expression, such as the lewd and

vulgar language in this particular case, are prohibited.


Hazelwood School District v. Kuhlmeier
In Hazelwood School District v. Kuhlmeier, a school principal ordered that two articles in

a school newspaper be removed due to inappropriate material and to protect the identities of

some individuals. The first article described three student experiences with pregnancies and the

other article described the impact of divorce on students. The students sued stating that the paper

was a public forum where students could write about various viewpoints, meaning that it,

"...could not be censored unless it was 'necessary to avoid material and substantial interference

with school work or discipline'" (Cordes, 2009, p. 666). The Supreme Court ruled in favor of the

school because they did not view the school newspaper as being a public forum. The newspaper

was not created for "indiscriminate" use by students, and therefore can be regulated by the school

(Willard, 2012).
Morse v. Frederick
The Morse v. Frederick case is different than the previous cases because it deals with off-

campus student speech in a public setting. In 2002 in Juneau, Alaska, the Olympic Torch was

scheduled to pass through the town. In order for students to see the rare event, the school's

principle allowed the students to attend the parade. This was treated as a "field trip" where

teachers and other faculty members supervised the students. As the torch approached, students

were holding a banner that read "BONG HiTS 4 JESUS" (Cordes, 2009 and Fronk, 2009). The
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principal asked the students to take the sign down. All students except for Joseph Frederick

complied, and as a result, he was suspended. Frederick then sued both the school and the

principal for violating his First Amendment rights. The Court found that the school did not

violate his First Amendment rights because of the unique relationship of the high school to it's

students. Frederick's banner advocated for illegal drug use, which schools have problems

combating (Cordes, 2009). This case affirms that administration can regulate student speech if

it occurred at a school sponsored event, promotes an illegal activity, and interferes with the

school's educational mission and deterring students from an illegal activity, such as drug use

(Cordes, 2009 and Fronk, 2010).


Cyberspeech
These four cases address different circumstances where free speech can, or cannot, apply

in a public school setting, but what about cyberspeech? Cyberspeech, for the purpose of this

paper, will be defined as off-campus, online speech that was not created by school resources, part

of a school activity, or on school property. Tabor mentions that, "off-campus cyberspeech that

directly targets fellow students should be within the reach of school regulation if it interferes

with the rights of other students or causes a substantial disruption" (p. 563). There have been

many cases that both uphold school regulation of cyberspeech and those that invalidate it.
In Thomas v. Board of Education, high school students created an off-campus newspaper

that discussed topics sexual in nature. Because the newspaper was produced, distributed, and

sold off-campus, the court found that regulation by the school was out of their jurisdiction

(Tabor, 2009). In Beussink v. Woodland R-IV School District, a student at their high school

created a webpage that criticized administration and use vulgar language. The court applied

Tinkers substantial disruption test and found that the school cannot remove or regulate the page

just because of an unpopular viewpoint (Tabor, 2009). Contrary to Beussink, in J. S. v.

Bethlehem Area School District a student created a website that showcased pages of derogatory,
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insulting, and threatening comments targeting the principal and other teachers at the school. One

page in particular consisted of a teacher morphed into Adolf Hitler and asked visitors to

contribute funds to purchase a hit man. Although the Supreme Court determined it was not a

true threat, they did view that speech as on-campus speech, rather than off-campus speech. This

case differs from Beussink because the comments and threats target a specific teacher

and because the website was accessed on campus to show another student (Tabor, 2009).
Tabor (2009) analyzed the previous cases, in addition to others, and determined the need

for distinction between cyberspeech targeting students and cyberspeech targeting the school,

faculty, or administration. The only way that teachers can regulate or monitor speech targeting

themselves, administration, or the school is to maintain order in the school environment. Unless

the speech harms students in their classroom, they must tolerate the speech. If cyberspeech

targets students, however, it may infringe on the rights of students. Harmful and targeting

cyberspeech, even when created off-campus, can impact how safe or unsafe the student feels in

the school environment and can create an environment that is not conducive to learning. It is

important to note that a higher education setting is very different than that of a high school. Tabor

(2009) references these points with a "high school student" mindset. In college and university

settings, there are different levels of maturity and various regulations than greatly differ. Higher

education has a unique role and relationship that differs from the relationship of primary and

secondary education. The Supreme Court has never dealt with a case of cyberspeech or off-

campus speech in a higher education setting, so it is important to be careful when applying lower

court cases to off-campus college settings.


According to Bankson (2014), public universities have a "tradition" of being a place

for free speech and free expression that is "fundamental to the functioning of our society" (p.

132). Because of this, public universities are bound by the First Amendment, while K-12
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schools, which have a large difference in age, maturity, and different regulations, may exercise

more censorship and control. Bankson (2014) suggests that off-campus and online speech

should be considered should be protected speech under the First Amendment because, unlike K-

12 schools, college students attend the given university voluntarily, while primary and

secondary schools are required and under more governmental control. Further, the author

suggests that off-campus and online speech should be protected unless it causes substantial and

material disruption, but what happens when off-campus speech is brought on campus by a third

party?
Off-Campus Speech Brought On-Campus
As the previously mentioned court cases show, many rulings and consideration revolves

around cyberspeech and First Amendment rights of students. However, when off-campus speech,

such as cyberspeech, written letters, or notes written at home, is brought on-campus without the

knowledge or permission of the speaker, the line determining how much protection that student

has becomes very blurry (Adamovich, 2012). Usually if speech is done on-campus, it fits into

one of the following categories as determined by the previously mentioned cases: speech that is

lewd or vulgar, speech that involves disruption or disorder, school-sponsored speech, or other

speech such as political, religious, or opinions or statements (Adamovich, 2012 and Fronk,

2010). When speech is brought on-campus by another party, analyzing what category that can fit

into is much more challenging. According to Adamovich (2012), two courts have tried to

apply Tinker's material and substantial disruption test but have lacked consistency in doing

so. Other courts that have dealt with this issues have determined the student's speech is

protected because it was off-campus. This ignores the fact that the speech actually reached the

campus population and could possibly affect other students.


When dealing with off-campus speech, many factors need to be considered: when the

speech was made, how it was made, and how it was brought on to campus (Adamovich, 2012).
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Adamovich (2012) suggests a way of addressing off-campus student speech brought onto

campus by a third party: applying public employee speech standards to student speech cases.

Public schools and most private schools are somehow funded by the government. This means

that the government sometimes has more control and discretion for what speech is permissible.

Additionally, student-teacher relationships are similar to employee-employer relationships. Both

employees and students must abide by certain rules and regulations during the school or work

day. Adamovich (2012) then suggests the use of a balancing test similar to the Pickering

balancing test. In Pickering v. Board of Education, a teacher wrote to his local newspaper

regarding a tax increase, for which he was subsequently fired. The court stated,
"The problem in any case is to arrive at a balance between the interests of the teacher, as

a citizen, in commenting upon matters of public concern and the interest of the State, as

an employer, in promoting the efficiency of the public services it performs through its

employees" (p. 1105).


The Pickering balancing test therefore weighs the interest of the school in regulated teacher's

opinion and contribution to a public issue and the interest of limiting the contribution from any

member of the general public, for which it cannot be greater. The actual Pickering test should not

be used in student speech cases though, mainly because student speech usually does not relate to

matters of public concern. A uniform balancing test that is similar, according to Adamovich

(2012), should be applied. This balancing test should consider all aspects of the speech, rather

than viewing it in a silo. Some aspects to consider include,


"(1) the intent, if any, for the speech to reach campus; (2) the number of listeners; (3) the

nexus between the student speech and school operations; (4) the level of disruption on the

school's operations caused by the speech" (p. 1108).


It should be noted that speech qualifying as a "true threat", incitement, or "fighting words are

not constitutionally protected speech (Lake, 2011).


Off-Campus Written Speech
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The four notable court cases aforementioned in this paper helped public schools draw a

line, although still blurry, to the extent that students are protected by the First Amendment. As

stated in Tinker, we learned that students do not "shed their constitutional rights to freedom of

speech and expression at the schoolhouse gate" (Fronk, 2010). In Bethel, we learned that the

First Amendment does not protect lewd or vulgar speech (Cordes, 2009). In Hazelwood,

newspapers were considered open forums that public schools can regulate, if they are paid for by

that particular school and bear the school's name (Cordes, 2009 and Willard, 2012). Finally, in

Morse, we learned that schools can regulate student speech if it occurred at a school sponsored

event, promotes an illegal activity, and interferes with the school's educational mission, even if it

does not directly disrupt the educational process (Cordes, 2009 and Fronk, 2010).
University of WisconsinLa Crosse Banner Incident
In the beginning of the 2016 school year during campus move-in week at the University

of WisconsinLa Crosse (UWL), a sexually suggestive banner was hung from an off-campus

student apartment that read, "Free Cream Pies w/ Valid Freshman ID" (O'Brien, 2016). The

apartment, just blocks from campus, caught the eye of dozens of passersby throughout that day.

Although many students were upset with what they saw, it was not until a picture was snapped of

the banner surrounded by proud students, and subsequently uploaded to social media sites like

Instagram and Facebook, that it went viral. A UWL student took a screenshot of the picture and

uploaded it to her personal Facebook page with the caption, You may think this was a harmless

joke but the reality is that the more we see posts like this online, the more rape culture is

normalized in our society" (Collins, 2016). This post was shared almost 2,000 times and

currently has over 300 likes.


According to a Channel3000 news article by Madalyn O'Neill (2016), Joe Gow was

quoted saying, "This is free speech, even stupidity is protected under free speech, but we also can

critique it with our free speech [] Its good to be seeing that happening in the UWL
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community." The UWL community, as well as citizens across the United States, are sharing their

thoughts over social media. Most feedback is in opposition to the banner, stating that it is

a lewd, highly offensive and ignorant act that promotes rape culture, and has a negative impact

on the UWL community (O'Brien, 2016; Collins, 2016; and O'Neill, 2016). The violence

prevention specialist at UWL commented to the WEAU 13 News Team (2016) that, "For people

who've been victimized it can create a feeling of unsafety, even for someone who hasn't been

victimized it can create a feeling of unsafety [] You don't know the individuals, you don't

know what they might be intending by that, we understand that they might not have intended

anything by it, but it's not always read that way by other people."
UWL Banner and the First Amendment. The UWL chancellor regarded the banner as

a free speech act protected by the First Amendment so the students were not suspended or

condemned in any academic way. If they had been punished and took their case to court, would

their banner be protected under the first amendment according to previous precedents set? Under

Tinker, speech that is non-disruptive and passive cannot be restricted just because the viewpoint

makes other people uncomfortable. For the UWL banner to be considered "disruptive," it needs

to pass the Tinker Test or Tinker Standard. This means that it need to disrupt classwork or abuse

the rights of others (Fronk, 2009). The speech used in the banner incident may not pass the

Tinker Test because it occurred when classes had not yet begun, it was not targeting a specific

student, and it may have only portrayed an unpopular viewpoint. Although, taking into account

what the violence prevention specialist at UWL previously stated, for a student who has been

victimized it can feel targeting and create an unsafe environment. If this was taken into

consideration in court, it may not pass the Tinker Test.


Next, the banner was considered by many people of the public to be "lewd" or "vulgar,"

both of which are not protected by a precedent set by Bethel. However, Bethel was dealing with
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a high school student. Public institutions of higher education have a very different student

school relationship than public primary and secondary schools. There are different rules,

regulations, and roles that would need to be considered by the court when applying the Bethel

precedent.
Lastly, If the courts were to apply the precedent set by Morse, the school would be able to

regulate speech that directly conflicts with a school policy, even if the speech does not directly

disrupt the educational process. Although Morse dealt directly with anti-drug use, the banner

used speech that promoted rape culture. Most campuses do not condone any type of speech or

act that perpetuates rape culture. At UWL, there are offices and programs dedicated to

advocating against the normalization of rape culture. These offices include the Hate/Bias

Response Team, Violence Prevention Services, Rape Culture Teach-Ins, and more. These could

be viewed as an overall mission, policy, viewpoint, or values that the school has and is working

against. Thus, the speech on the banner would be conflicting against this viewpoint or policy.

Again, Morse was a high school, not an institution of higher education. Different roles, rules,

and regulations need to be considered when applying previous cases to those that occur in a

college environment.
Conclusion
If this case were to go to court, I think that the verdict could sway both in favor and in

opposition of UWL. After reviewing the four court cases that dealt with the First Amendment

and free speech protection, it would be up to the courts to determine how they would apply it in a

public higher education setting. Because this speech happened off-campus, it is difficult for

administration to punish those students. However, the speech was brought onto campus through

the use of social media and caused substantial disruption for UWL students. Additionally, this

speech promoted rape culture in a lewd and vulgar way. Unfortunately, there is no way to know

how, or if, the courts would view this speech as disruptive, lewd or vulgar, if it would be going
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against the schools policy, mission, and values, and if it would be punishable by higher

education school administration.

References

Adamovich, T. L. (2012). Return to sender: Off-campus student speech brought on campus

by another student. St. John's Law Review, 82(3), 1087-1113.

Bankson, H. (2014). Maintaining the schoolhouse gate: Why public universities should not

regulate online, off campus communications through student handbooks. Journal of

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Beckstrom, D. C. (2008). Who's looking at your Facebook profile? The use of student conduct

codes of censor college students' online speech. Willamette Law Review, 45(261).

Collins, B. (2016, September 8). With lewd banner, UW-La Crosse students embrace rape

culture. MRP News. Retrieved from http://blogs.mprnews.org/newscut/2016/09/with-

lewd-banner-uw-la-crosse-students-embrace-rape-culture/

Cordes, M. W. (2009). Making sense of high school speech after Morse v.

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DuMont, S. (2016). Campus safety v. freedom of speech: An evaluation of university


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responses to problematic speech on anonymous social media. Journal of Business and

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Fronk, N. S. (2010). Doninger v. Niehoff: An example of public schools' paternalism and the off-

campus restriction of students' First Amendment rights. Journal of Constitutional Law,

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Lake, P. (2011). Foundations of higher education law and policy: Basic legal rules, concepts,

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O'Brien, E. (2016, September 6). UW-La Crosse administration responds to controversial

banner. WEAU 13 News. Retrieved from http://www.weau.com/content/news/UW-La-

Crosse-administration-responds-to-controversial-student-banner-392503511.html

O'Neill, M. (2016, September 7). Banner an unwelcome message at UW-La Crosse: Sexually

suggestive banner gets pushback on campus. Channel3000 News. Retrieved

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Tinker v. Des Moines Independent Community School District, 393. U.S. 503 (1969)

Weeks, R. L. (2012). The First Amendment, public school students, and the need for clear limits

on school official's authority over off campus student speech. Georgia Law Review,

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