Beruflich Dokumente
Kultur Dokumente
Kaylie Connaughty
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,
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
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
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
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).
determined in Tinker, the Court noted that certain types of expression, such as the lewd and
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
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
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
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
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.
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
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
nexus between the student speech and school operations; (4) the level of disruption on the
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
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
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
References
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Beckstrom, D. C. (2008). Who's looking at your Facebook profile? The use of student conduct
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Collins, B. (2016, September 8). With lewd banner, UW-La Crosse students embrace rape
lewd-banner-uw-la-crosse-students-embrace-rape-culture/
Fronk, N. S. (2010). Doninger v. Niehoff: An example of public schools' paternalism and the off-
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Lake, P. (2011). Foundations of higher education law and policy: Basic legal rules, concepts,
Crosse-administration-responds-to-controversial-student-banner-392503511.html
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from http://www.channel3000.com/news/banner-an-unwelcome-message-at-uwla-
crosse/41546928
Tabor, J. (2009). Students' First Amendment rights in the age of the internet: Off-campus
cyberspeech and school regulation. Boston College Law Review, 50(2), 561-604.
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Tinker v. Des Moines Independent Community School District, 393. U.S. 503 (1969)
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