A freshman at Oak Grove High School in Missouri used Facebook last month to vent about another student: "Wow, [expletive] alert," wrote Megan Wisemore. "You're a skank and I hate you with a [expletive] passion." Though Wisemore intended only for her friends to see the message, the classmate she wrote about eventually read the posting as well. When Wisemore returned to school, that classmate attacked her in retaliation.

Both students received suspensions; the classmate for fighting, Wisemore for her Facebook post. "It was very colorful language I don't approve of, but I didn't like the fact the school stepped into my home," said Christy Wisemore, Megan's mother. "That's her constitutional right to write what she feels."

The First Amendment protection of student speech is grounded in the seminal case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In Tinker, three public high school students were suspended for wearing black armbands to protest the Vietnam War. They successfully challenged the school's policy prohibiting the armbands, and in the process the Supreme Court created a new standard of review for student speech.  Under this standard, school officials may prohibit or punish student speech only if the speech would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." 393 U.S. at 509.

The problem, however, is that social media provides students with a large platform from which off-campus speech can spill into the classroom. Though students have used services such as Facebook and MySpace for several years now, courts are still struggling to balance their First Amendment rights with the disruption their speech may cause on school grounds.

Consider two recent 3rd Circuit of Appeals cases. Both involved high school students who were suspended for creating fake MySpace profiles on which they insulted their principals. In Layshock v. Hermitage School District, the court found that school officials should not have suspended a student who described his principal as, among other things, a "big whore" who smoked a "big blunt." In J.S. v. Blue Mountain, the court upheld the suspension of a student who called her principal a "tight ass" who liked "hitting on students and their parents."

As the Legal Intelligencer explained: In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at school.

Forty-one years after Tinker, courts are waffling between interfering and potentially interfering. If there isn't consistency in cases such as these, students like Wisemore could be without recourse. Further, all other students with a Facebook account will risk suspension any time they update their status. As Justice Fortas famously said in Tinker: Students do not shed their constitutional rights to freedom of speech at the schoolhouse gate. Yet at least some courts now seem willing to ask students to shed them before they even leave home.

It doesn't need to be that way. Courts should follow Tinker and expect schools to do so as well. Wisemore didn't interfere with her school when she posted to Facebook. Wisemore's classmate brought that speech into the classroom and caused a disturbance by starting a fight. That classmate should be the only student suspended. The comments made by the two 3rd Circuit plaintiffs didn't interfere with the schooling of any students. They targeted principals, and as offensive as their comments may be, those students shouldn't be punished unless that speech enters the classroom and causes a disturbance. For those who are the subject of online rants, there are legal remedies available when the speech is actionable, such as laws against libel and harassment.

What's complicating matters is the panic over cyberbullying. High-profile suicides, like those of Megan Meier and Phoebe Prince, can make the words of Wisemore seem more threatening. Cyberbullying is a problem because targeted students assume everyone is reading about them simply because the comments are online. But just because anyone can read the comments, doesn’t mean everyone is actually reading those comments. The classmate that attacked Wisemore is claiming she was cyberbullied, despite the fact that Wisemore made her comment to a private group of friends. Still, school officials suspended Wisemore.

Many states are enacting cyberbullying laws to help combat hurtful and harassing online speech. Missouri enacted its own law two years ago in response to the suicide of Megan Meier, who lived in the state. Responding to the death of Prince, the Massachusetts Senate approved a bill last week that would prohibit the use of emails, text messages, Internet postings and other electronic means to create a hostile school environment. This focus on creating "a hostile school environment" seems to be the right approach because the focus is within the schoolhouse gates, not beyond them. Drafters of that bill made clear that "nothing in this section shall be construed to abridge the rights of students that are protected by the First Amendment."

But that, unfortunately, is the problem. Those First Amendment rights have yet to be clearly defined.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school's Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.) 

Photo "My Computer Keys" courtesy of Flickr user lizzardo, licensed under CC BY 2.0.