A Substantial Disruption of Public Concern: Tinker, Bell v. Itawamba, and Internet Speech for High School Students
Over fifty years ago, TINKER established a standard for protected on-campus speech, allowing students to protest the Vietnam war by wearing black armbands during school hours.
Fast-forward to the twenty-first century, and concerns about smart phones, social media, and the Internet have resulted in application of the TINKER test to off-campus speech in most of the United States circuit Courts of Appeal, with some dissent in the Third Circuit. The instant case originates in rural northern Mississippi and made its way to the Fifth Circuit, where an en banc decision upheld a school board’s punishment of a student for a YouTube video, composed off-campus, full of violent rhetoric and allegations of teacher-on-student sexual impropriety. The majority of the panel of judges found that the school district’s policy banning conduct that threatens, harasses, or intimidates was constitutional, using TINKER to analyze the conduct. Originally a three-judge panel issued an opposite ruling that the student’s speech was protected and TINKER did not extend off-campus.
There is disagreement in the intermediate courts over when and where TINKER applies. The current climate in public schools, where use of technology is encouraged yet boundaries and norms are constantly evolving, beckons for a new, consistently-applied standard for high school student speech that takes the existence of a new online forum into account. This conflict should be resolved by the Supreme Court. TINKER is overdue for an update.