Badmouthing Authority: Hostile Speech About School Officials and the Limits of School Restrictions

Abstract

This Article offers a new perspective on what is arguably the thorniest, most pressing issue in student speech rights today: the extent to which schools can regulate students’ off-campus speech, particularly on the internet. Although numerous scholars have considered this topic, there has been little critical focus on the fact that most of these cases are arising in one very specific category: student speech that is hostile toward school officials. In fact, that has been the context of all four of the student internet speech cases that have reached the circuit court level so far, including two cases that are currently pending in the Third Circuit after being reheard en banc.

In this Article, I explore the issue of students’ hostile speech about school officials, both on and off school grounds. To what extent can schools legally restrict such speech, and how does that change when the speech originates off campus? Conversely, what legal and educational risks do schools face by not responding to such speech? I look to both case law and relevant psychological research to answer those questions, and then propose a standard that focuses on preserving students’ ability to express dissenting views while also protecting school officials from harassment. My analysis suggests that the on-campus/off-campus distinction, while important, should be less central to the outcome than the content of the speech itself. Indeed, I argue that courts are under-protecting some on-campus speech that qualifies as legitimate dissent, while over-protecting some off-campus speech that largely amounts to harassment.