The District Court incorrectly applied Tinker and its progeny to Michael’s creation of his Facebook page.
Michael’s Facebook page did not create a substantial disruption. “A general ‘buzz’” on campus is not sufficient basis for restricting the speech of a student. J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1120 (C.D. Calif. 2010). Students at Nero discussed Michael’s page, but the discussion did not cause a substantial disruption. Justice Alito’s concurrence in Morse notes the Court does not endorse a broad rule allowing restrictions on anything that may interfere with the “educational mission.” Morse, 551 U.S. at 423. Administrations cannot claim conflict with the goals of the educational institution as indication of …show more content…
The Fifth Circuit declined to find potential disruption when a student’s younger brother brought a violent drawing the student made at home onto campus. Porter v. Ascension Parish Sch. Bd. 393 F.3d 608 (5th Cir. 2004). Likewise, a student’s comment on Facebook about a teacher he did not like needing “to be shot” failed as reasonable foreseeability of violence. Burge v. Colton Sch. Dist. 53, 100 F. Supp. 3d 1057 (D. Or. 2015). The court found the school violated the student’s right to free speech for punishing him over comments he made on his private Facebook page. Id. The student merely vented frustrations over treatment by teacher on Facebook. Id. Violent and threatening remarks must be reasonable for a fact-finder to consider a true threat. Michael’s page does not reasonably forecast substantial disruption under courts’ narrow …show more content…
Lewd and obscene is not a sufficient standard alone to restrict a student’s off-campus activities. Michael did not direct the speech to the students, nor were the students whom accessed the page “an unsuspecting audience” to potentially obscene content. Fraser, 478 U.S. at 685. Schools may not restrict speech occurring off-campus that would not be subject to the allowable restrictions the First Amendment broadly gives. A student’s ability to access and discuss the page, does not allow regulation of speech alone. Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998). Courts often find mere access to a page does not indicate on-campus concerns. Additionally, in Layshock the court rightly called it “unseemly and dangerous precedent” to allow the state under the guise of school authority to reach into a child’s home and control their actions in the same fashion as under school-sponsored authority. Layshock, 650 F.3d at 216. Granting Nero the ability to punish a student for criticizing the administration sets a precedent for the state to do so to an ordinary citizen. The authority for schools to restrict speech cannot well from a mere attempt to “avoid discomfort or unpleasantness.” Tinker, 393 U.S. at 509. Nero’s unhappiness with Michael voicing concerns regarding a potentially discriminatory educator does not grant authority to punish him for it. Emotive impact