1. II. A SCREENSHOT OF STUDENTS’ FIRST AMENDMENT RIGHTS
   1. A. Before Social Media Went Viral: Supreme Court Decisions on Student Speech
   2. B. A Blurry Picture: The Differing Circuit Court Approaches to Off-Campus Social Media Speech

II. A SCREENSHOT OF STUDENTS’ FIRST AMENDMENT RIGHTS

Between 1969 and 2007, the Supreme Court decided four student speech cases.²⁷ Many circuit courts have relied on these cases for guidance when addressing off-campus student speech.²⁸ However, their inconsistent approaches have confused school officials and demonstrated a need for further Supreme Court intervention.²⁹

A. Before Social Media Went Viral: Supreme Court Decisions on Student Speech

Over fifty years ago in Tinker, the Supreme Court stated that public school students do not lose their First Amendment rights while on school

²⁷. See Morse v. Frederick, 551 U.S. 393, 403 (2007) (finding “special characteristic of the school environment” enables schools to regulate student speech promoting illegal drug use (quoting Tinker, 393 U.S. at 506)); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988) (noting school officials may regulate expression associated with academic curriculum “to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school”); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) (determining appropriate for school district to regulate vulgar student expression).

²⁸. See Elizabeth A. Shaver, Denying Certiorari in Bell v. Itawamba County School Board: A Missed Opportunity to Clarify Students’ First Amendment Rights in the Digital Age, 82 BROOK. L. REV. 1539, 1554 (2017) (discussing how lower courts have had to apply Supreme Court’s “twentieth century” student speech cases to “twentyfirst century” student speech issues).

²⁹. See, e.g., Doninger v. Niehoff, 642 F.3d 334, 353 (2d Cir. 2011) (“The law governing restrictions on student speech can be difficult and confusing, even for lawyers, law professors, and judges. The relevant Supreme Court cases can be hard to reconcile . . . .”); Naomi Harlin Goodno, How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy That Considers First Amendment, Due Process, and Fourth Amendment Challenges, 46 WAKE FOREST L. REV. 641, 657 (2011) (noting the circuit court split indicates the law is unclear); Mendola, supra note 16, at 161 (noting “[t]he resulting circuit split is based primarily on varying interpretations of the Court’s 1969 holding in Tinker, as applied to Internet conduct decades later”).

property.³⁰ The Court found the school’s punishment of three students for wearing headbands to be an unconstitutional restriction on speech.³¹ The Court emphasized that “students . . . [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”³²

Although Tinker clarified that students retain significant First Amendment rights while in school, these rights are not as extensive as those of a regular citizen.³³ The Court inserted a narrow exception that allowed school officials to regulate student speech that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”³⁴ Speech that is merely controversial or unpopular does not meet this standard.³⁵ Rather, the speech must threaten to disrupt the operation of the school or violate the rights of other students.³⁶

A material and substantial disruption is not the only limit on students’ First Amendment rights while in school. In three cases following Tinker, the Supreme Court carved out additional exceptions.³⁷These cases reaffirm that there are boundaries to students’ First Amendment rights in school.³⁸

³⁰. See Tinker, 393 U.S. at 506 (“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students.”).

³¹. Id. at 505–06 (stating that wearing armbands constitutes “pure speech,” which is entitled to First Amendment protection (internal quotation marks omitted) (first citing Cox v. Louisiana, 379 U.S. 536 (1965); then citing Adderly v. Florida, 384 U.S. 39 (1966))).

³². Id. at 506 (clarifying that this has been the Court’s stance for nearly fifty years).

³³. See id. at 513. The Tinker court decided that a student’s speech loses constitutional protection if it compromises the school environment: But conduct by the student, in class or out of it, which for any reason— whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Id.

³⁴. *Id. *(internal quotation marks omitted) (quoting Burnside v. Byars, 363 F.2d 744, 749 (1966)) (explaining schools may regulate speech that disrupts school activities or rights of others).

³⁵. See id. at 509 (“In order for the [s]tate in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”).

³⁶. *See id. *at 514 (stating that school authorities must demonstrate that student speech “forecast[s] substantial disruption of or material interference with school activities” in order to justify regulation).

³⁷ See Morse v. Frederick, 551 U.S. 393, 408 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986).

³⁸. See Morse, 551 U.S. at 410 (“The First Amendment does not require schools to tolerate at school events student expression that contributes to . . . dan

The first exception emerged in Bethel School District No. 403 v. Fraser. ³⁹ In that case, Matthew Fraser used a sexual metaphor in a speech at a school assembly.⁴⁰ In response, the school suspended Fraser for two days.⁴¹ The Court found the suspension did not violate the First Amendment because Fraser’s speech contained vulgar and offensive language.⁴² The Court noted part of a school’s role is to exemplify and enforce appropriate forms of expression.⁴³ Unlike the political speech in Tinker, the sexual metaphor in Bethel affronted “the ‘fundamental values’ of public school education.”⁴⁴

The following year, the Court added another caveat to the Tinker exception in Hazelwood School District v. Kuhlmeier. ⁴⁵ In that case, the Court found a principal did not violate students’ First Amendment rights by removing student articles discussing divorce and abortion from a schoolsponsored newspaper.⁴⁶ The Court reasoned that the school, as the publisher of the paper, may set high standards for student speech and refuse publication if those standards are not met.⁴⁷ The Court stated schools must consider the maturity of the speech’s audience when trying to protect its students from inappropriate speech.⁴⁸ Thus, the Court held that it

gers [such as illegal drug use].”); Kuhlmeier, 484 U.S. at 274 (deciding principal may constitutionally censor articles in school newspaper); Fraser, 478 U.S. at 683 (finding school may regulate vulgar, nonpolitical student speech).

³⁹. 478 U.S. 675 (1986).

⁴⁰. Id. at 677–78 (emphasizing Fraser’s speech, which was in front of approximately 600 students). Fraser’s stated purpose for his speech was to nominate a peer for student elective office. Id. at 677.

⁴¹. *Id. *at 679.

⁴². See id. at 683 (concluding that speech offensive to mature adults and damaging to younger, impressionable students is unprotected).

⁴³. See id. (“Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”). The Court emphasized that education “is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order.”* Id. *

⁴⁴. Id. *at 685–86 (deeming appropriate and constitutional a school’s measures to regulate vulgar speech and lewd conduct). The Fraser court noted the tensions between promoting viewpoint diversity at schools and protecting the sensibilities of fellow students. *See id. at 681 (“The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”).

⁴⁵. 484 U.S. 260 (1988).

⁴⁶. - Id. at 270–71 (distinguishing from Tinker because it concerns whether schools must promote student speech rather than whether schools may silence student speech).

⁴⁷. See id. at 271–72 (explaining school newspapers can set higher standards than actual newspaper publishers). A school may refuse to associate itself with speech that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.” Id. at 271.

⁴⁸. *See id. *at 272 (noting emotional maturity “might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting”).

is constitutionally permissible for schools to exercise this sort of control so long as it is “reasonably related to legitimate pedagogical concerns.”⁴⁹ In other words, censorship of a school-sponsored form of expression is acceptable if justified by a legitimate educational purpose.⁵⁰

In 2007, Morse v. Frederick⁵¹ added the final exception to Tinker. ⁵² While at an off-campus, school-supervised event, Joseph Frederick waved a banner that read “BONG HiTS 4 JESUS.”⁵³ When Frederick refused to take the banner down, the school principal issued him a ten-day suspension.⁵⁴ Ultimately, the Court upheld the suspension because the banner could reasonably be interpreted as promoting illegal drug use rather than articulating a political message.⁵⁵ The Court considered the speech “in light of the special characteristics of the school environment” and reasoned that the banner’s message contradicts the school’s interest in deterring drug use.⁵⁶ Moreover, the Court considered this a school speech case because Frederick was at a school-sponsored event and directed the banner at students.⁵⁷

B. A Blurry Picture: The Differing Circuit Court Approaches to Off-Campus Social Media Speech

Although the Supreme Court has yet to comment on a school’s ability to regulate off-campus student cyberspeech, many circuit courts have.⁵⁸ To date, the Second, Third, Fourth, Fifth, Eighth, Ninth, and Eleventh

⁴⁹. Id. at 273 (explaining that a school’s exercise of control over student speech in school-sponsored expressive activities does not violate First Amendment).

⁵⁰. See id.

⁵¹. 551 U.S. 393 (2007).

⁵². See id. at 408 (finding “special characteristics of the school environment” enable school to regulate expression promoting illegal drug use (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969))).

⁵³. Id. at 397. The event took place across the street from Frederick’s school, those inside the school could view the banner. *Id. *

⁵⁴. Id. at 398 (noting Frederick’s principal believed the banner encouraged illegal drug use). Frederick’s principal believed this banner violated the school’s policy, which states in part, “[t]he Board specifically prohibits any assembly or public expression that . . . advocates the use of substances that are illegal to minors . . . .” Id. (second and third alteration in original) (citation omitted).

⁵⁵. Id. at 402–03 (stating the banner could not be interpreted as a political message). If the students created the banner to advocate for legalization of marijuana or to promote a religious belief, in all likelihood, the Court would have protected Frederick’s speech because Tinker protects political messages. See id.

⁵⁶. Id. at 405 (quoting Tinker, 393 U.S. at 506) (explaining a banner promoting drug use creates concrete danger in school environment).

⁵⁷. See id. at 393–94 (rejecting the student’s argument that these facts fall outside the purview of “school speech” cases).

⁵⁸. See e.g., Katherine A. Ferry, Comment, Reviewing the Impact of the Supreme Court’s Interpretation of “Social Media” as Applied to Off-Campus Student Speech, 49 LOY. U. CHI. L.J. 717, 732–42 (2018) (summarizing courts’ varying approaches to offcampus student cyberspeech).

Circuits have addressed the issue of off-campus student cyberspeech to varying outcomes.⁵⁹ Of these approaches, the Fourth Circuit’s sufficient nexus test most effectively balances First Amendment rights and the school’s need to maintain a safe environment.⁶⁰

The Second Circuit typically has followed the reasonable foreseeability test, which examines whether it is reasonably foreseeable to school officials that the off-campus speech will reach school grounds.⁶² If the answer is yes, the court applies the Tinker exception and asks whether the speech is likely to cause a substantial disruption.⁶² If it is, school officials may discipline the student without running afoul of the First Amendment.⁶³

Alternatively, before B.L., rather than assessing whether the Tinker exception extends to instances of off-campus student speech, the Third Cir-

⁵⁹. See id. at 730 (explaining that although most circuits have applied a form of the Tinker exception, they interpret and apply Tinker and its progeny in different ways); see also Daniel Marcus-Toll, Note, Tinker Gone Viral: Diverging Threshold Tests for Student Regulation of Off Campus Digital Student Speech, 82 FORDHAM L. REV. 3395, 3420 (2014) (“There is a split among the federal courts of appeals with respect to whether, and under what circumstances, [the Tinker exception] extends to offcampus student speech.”). In B.L. ex rel. Levy, the Third Circuit discussed the Second, Third, Fourth, Fifth, and Eighth Circuit approaches. See B.L. ex rel. Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170, 180, 186–87 (3d Cir. 2020). For additional context, the Ninth Circuit applies the Tinker exception to cases of off-campus cyberspeech where there is “an identifiable threat of school violence.” Ferry, supra note 58, at 731 (outlining the circumstances which warrant invoking the exception). Furthermore, when faced with an instance of off-campus student cyberspeech, the Eleventh Circuit asks whether school officials were justified in expelling a student based on a combination of the Tinker exception and the true threat approach. See Boim v. Fulton Cty. Sch. Dist., 494 F.3d 978, 982 (11th Cir. 2007).

⁶⁰. See Kristopher L. Jiles, Note, Trigger Fingers Turn to Twitter Fingers: The Evolution of the Tinker Standard and Its Impact on Cyberbullying Amongst Adolescents, 61 HOW. L.J. 641, 663 (2018) (arguing the nexus test adequately balances interests because before regulating, a school must prove a nexus between speech and school). For a discussion of why the Fourth Circuit’s sufficient nexus test best balances these interests, see infra notes 72–79 and accompanying text.

⁶¹. See Ferry, supra note 58, at 732 (describing the test as an “additional threshold” to the Tinker exception).

⁶². See id. (noting that Second Circuit rejected the true threat approach because “school administrators’ authority is beyond what the true threat standard allows”).

⁶³. See id. (“[I]f off-campus conduct can create a foreseeable risk of substantial disruption within a school, the school has the authority to discipline the student.”). In 2007, the court applied this test in Wisniewski v. Board of Education of Weedsport Central School District, 494 F.3d 34 (2d Cir. 2007). While at home, a student sent out a drawing of their English teacher being shot via instant message. Wisniewski, 494 F.3d at 35–36. As a punishment, the school suspended the student. Id. at 34–35. When addressing whether the suspension was constitutional, the court applied a combination of the reasonable foreseeability test and the Tinker exception. See id. *at 40. It ultimately found that because the speech could reach school grounds and cause a substantial disruption. *Id. Thus, the suspension was constitutional. Id.

cuit assumed that it applied.⁶⁴ In J.S. ex rel. Snyder v. Blue Mountain School District,⁶⁵ an eighth grade student created a MySpace profile to poke fun at their school principal.⁶⁶ Consequently, the school suspended J.S.⁶⁷ To assess the constitutionality of this suspension, the Third Circuit focused on the student’s intent.⁶⁸ To uphold the suspension, the school had to provide express evidence that the student intended for the speech to make its way onto school grounds and that readers would take its content seriously.⁶⁹ Because the student made the page private, the Third Circuit found it unlikely that the speech would cause a substantial disruption.⁷⁰ Thus, the student’s suspension was unconstitutional.⁷¹

The Fourth Circuit has followed the sufficient nexus test.⁷² This test asks whether the off-campus conduct is sufficiently connected to the school’s pedagogical interests to warrant punishment.⁷³ A school can regulate off-campus student speech if doing so protects the well-being of students and promotes education.⁷⁴ Applying the sufficient nexus test in

⁶⁴. See J.S. ex rel. Snyder v. Blue Mt. Sch. Dist., 650 F.3d 915, 926 (3d Cir. 2011) (assuming without explanation that the Tinker exception applies). In Layshock ex rel. Layshock v. Hermitage School District, the Third Circuit took this same approach. See Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 219 (2011) (“[W]e need not now define the precise parameters of when the arm of authority can reach beyond the schoolhouse gate . . . .”).

⁶⁵. 650 F.3d 915 (3d Cir. 2011).

⁶⁶. *Id. *at 920 (explaining profile contained “adult language and sexually explicit content”).

⁶⁷. * Id. *

⁶⁸. * See id.* at 948 (Fisher, J., dissenting) (“The majority goes so far as to state that we should take J.S.’s speech less seriously because she intended it as a ‘joke.’”).

⁶⁹. See id. at 930–31 (explaining that to justify suspension, J.S. must have intended for the student body to be the target audience).

⁷⁰. See id. J.S. granted access to about twenty-two students at the school, and because the school district blocked MySpace, students could not view the page while on campus. See id. at 920–21. According to the record, the page was “so outrageous that no one took its content seriously.”* Id.* at 921.

⁷¹. See id. at 931. Although the majority avoided addressing whether school officials can regulate off-campus student speech, Judge D. Brooks Smith—joined by four others—tackled the issue in a concurring opinion. See id. at 936 (Smith, J., concurring). Judge Smith argued that “[a]pplying Tinker to off-campus speech would create a precedent with ominous implications. Doing so would empower schools to regulate students’ expressive activity no matter where it takes place . . . .” Id. at 939.

⁷². See Ferry, supra note 58, at 755 (noting that Fourth Circuit is only circuit to adopt sufficient nexus test). This Note asserts that the Fourth Circuit’s sufficient nexus test appropriately addresses the concerns surrounding off-campus student cyberspeech. For an in-depth discussion of the advantages of the Fourth Circuit’s test, see infra Section V.C.

⁷³. See Calve, supra note 22, at 386 (describing sufficient nexus test as “threshold prong,” meaning a sufficient connection between the speech and the school must be establish before applying Tinker exception).

⁷⁴. See Kowalski v. Berkeley Cty. Sch., 652 F.3d 565, 572 (4th Cir. 2011) (“[S]chool administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning.”).

Kowalski v. Berkeley County Schools, ⁷⁵ the Fourth Circuit held that a school could punish a student who created a MySpace page to post hateful comments about a peer.⁷⁶ Although the incident occurred off campus, the Fourth Circuit said it was reasonably foreseeable to the student that their speech could create a substantial disruption in school because most of the people who interacted with the page were students.⁷⁷ Furthermore, the Fourth Circuit recognized that bullying and harassment are serious issues, and schools must be able to take action to maintain a safe environment.⁷⁸ The court noted that “the Constitution is not written to hinder school administrators’ good faith efforts to address [bullying and harassment].⁷⁹

Unlike other circuits, the Fifth Circuit has declined to articulate a specific test for off-campus cyberspeech.⁸⁰ Rather, the Fifth Circuit has applied the Tinker exception on a case-by-case basis.⁸¹ In Bell v. Itawamba County School Board, ⁸² a student created a rap video that accused two sports team coaches of sexual misconduct.⁸³ The Fifth Circuit applied the Tinker exception and held that the school may punish the student because the student intentionally directed the speech at the school.⁸⁴

⁷⁵. 652 F.3d 565 (4th Cir. 2011).

⁷⁶. Id. at 567 (concluding that the bullying occurred in such a way that “was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech”). Over twenty students were members of the page, where a peer named Shay was the main subject of discussion. Id. at 567–68. One student posted a photograph of themselves and a friend holding a sign that read “Shay Has Herpes.” Id. at 568. Later, the same student posted another photograph with a photo of Shay’s face with a sign that read, “portrait of a whore.” *Id. *

⁷⁷. Id. at 572–73. The court reasoned that although the hate speech originated on the bully’s home computer, the bully “knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment.” Id. at 573. Indeed, the victim noted they felt uncomfortable sitting in class with students who ridiculed them online. Id. at 568.

⁷⁸. See id. at 572 (equating a school’s duty to maintain an environment free from bullying to a school’s duty to maintain an environment free from messages promoting illegal drug, which the Supreme Court articulated in Morse). The court briefly noted discussed some of the negative impacts of bullying, which “can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide.” Id. (citing STOPBULLYING.GOV, www.stopbullying.gov [https:/ /perma.cc/5HT6-ZJNU] (last visited Feb. 6, 2021)).

⁷⁹. Id. at 577 (balancing student’s First Amendment rights against school’s need to maintain an appropriate academic environment).

⁸⁰. See Ferry, supra note 58, at 737 (noting Fifth Circuit “failed to adopt or reject approaches advocated by other circuits”).

⁸¹. See, e.g., Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 391 (5th Cir. 2015) (holding Tinker exception applies to speech at issue).

⁸². 799 F.3d 379 (5th Cir. 2015).

⁸³. Id. at 384 (explaining student’s rap video contained vulgar and threatening language, including “betta watch your back,” and “going to get a pistol down your mouth”).

⁸⁴. See id. at 394 (following the four other circuit courts that chose to apply the Tinker exception in instances of off-campus student cyberspeech). The Fifth

Finally, the Eighth Circuit follows both the true threat approach and the Tinker exception in instances of off-campus student speech.⁸⁵ In D.J.M. ex rel. D.M. v. Hannibal Public School District No. 60, ⁸⁶ the Eighth Circuit adopted the Second Circuit’s reasonable foreseeability approach and found the Tinker exception applies in cases of off-campus student speech when it is reasonably foreseeable that the speech will reach the school and cause a substantial disruption therein.⁸⁷ After D.J.M. used their home computer to send a classmate messages discussing a potential school shooting, the school issued a ten-day suspension.⁸⁸ The court first held the messages constituted a true threat because the school had enough information to reasonably conclude that D.J.M. was planning a school shooting.⁸⁹ Second, applying the Tinker exception, the court concluded that the school could intervene because the school community would otherwise be exposed to a serious risk of harm and a disrupted environment.⁹⁰

Table of Contents

• I. NOW TRENDING - THE INCREASE IN SOCIAL MEDIA USE AND ITS CONSEQUENCES
• II. A SCREENSHOT OF STUDENTS’ FIRST AMENDMENT RIGHTS
• III. SNAPCHAT STORY TO SUSPENSION - THE FACTS OF B.L
• IV. THE THIRD CIRCUIT HAS ENTERED THE CHAT
• V. PUTTING A FILTER ON SPEECH
• VI. TTYL