As a practical matter, I think it's awfully hard to see the court retreating from Hazelwood if only because that would require getting a vehicle in front of the court that provides that opportunity, and it is exceedingly difficult to do that.
When you're dealing with students, their time horizon is measured in weeks and not in years. The Hazelwood case itself took almost five years from the time of the censorship to the time of the Supreme Court ruling, and it's rare to find a student who's willing to devote five years to taking a free-speech case all the way through the Supreme Court, when there's no way that student will personally benefit from the outcome. Plus, you have to have a very stubborn and determined school on the other side. In our experience, when schools are confronted with a determined student with a strong case who's not afraid to go to court, their knees buckle on the courthouse steps.
I don't have much practical hope that the court will revisit Hazelwood, although I do allow myself the fantasy that Justice [Sandra Day] O'Connor, whose vote could have swung the case in the students' favor and who is now the nation's leading advocate for student civic engagement, will come to realize just how devastating Hazelwood has been for youth civic participation and give a speech disowning that vote and expressing her regret for it. I wake up right after she gives the speech, so I can't tell you how the dream ends.
What is the next battlefront in the area of student expression, and how do you think the Supreme Court will handle it?
It's only a matter of time before the court takes on a case involving the ability of schools to regulate and punish speech that's created at home on a personal computer, but that provokes a reaction at school. That issue—how far does a school's disciplinary authority reach beyond the proverbial "schoolhouse gate" that the court referenced so memorably in Tinker—is probably the single most actively litigated First Amendment issue that is tying the lower courts into knots today.
We've seen several courts of appeal declare that off-campus speech on a social networking site is the legal equivalent of speech in the hallway during school hours, and that's a direct outgrowth of the judicial movement toward deference to school disciplinarians that the court signaled in Hazelwood. That is a very dangerous path.
If we say that a student can be suspended or expelled for speech that disrupts the orderly operation of school, even off campus, then that casts a very long shadow over the ability of a student to engage in whistleblowing speech or editorial commentary that might provoke a strong reaction affecting the school. The student who is censored when he tries to write a newspaper article about how hazing and steroid use are rampant in the athletic department needs to have absolute confidence that, even if he can't publish that article in the campus newspaper, he can go to the local TV news team or speak at the open-mike session at the school board, and that speech will not get him yanked into the principal's office and suspended, even if it causes a huge uproar that results in coaches being fired and parents pulling their kids out of the school. That may be "disruptive" speech, but it's incredibly societally valuable speech.
The Tinker "disruption" standard is just insufficiently protective when you're talking about speech that's directed to a larger public audience outside of school that might include parents, policymakers and the news media.
It's essential that the Supreme Court get this one right. If we throw open the gates and unleash school disciplinary authority over everything students say no matter where and when they say it, then we're going to see a repeat of the same "zero tolerance" overreactions we've already experienced with weapons and drugs. We're going to see kids kicked out of school for harmless misunderstood jokes on their Facebook pages, and we're going to be conditioning young citizens to believe it's okay for the government to keep tabs on everything you do and to punish you just for saying unkind words (or words that are misunderstood as being unkind).
Based on the last time the court waded into the student speech issue, Morse v. Frederick in 2007, and based on the last several years of First Amendment rulings of the Roberts Court, I feel comfortable that this court is not inclined to further erode the First Amendment in any meaningful way. In the Morse case, you saw Justices [Samuel] Alito and [Anthony] Kennedy express real hesitation about recognizing any more exceptions to the Tinker standard or giving schools any greater disciplinary authority over the content of speech. Especially if the case involves speech that has any substantive merit—speech addressing issues of social importance, even if it's very coarse or inartful speech—I am optimistic that the First Amendment will survive Facebook.
Tony Mauro writes for The National Law Journal, a Daily Report affiliate.
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