The intersection between school discipline and free speech has sparked debates over how far a school's authority extends beyond campus. The internet and the nationwide conversation about cyberbullying have only magnified the debate. In Tinker v. Des Moines, the Supreme Court recognized that students do retain their First Amendment rights while under the school's authority. The Court then went on to hold that a school can punish a student for his or her on-campus speech if the speech causes a substantial or material disruption to school activities or if the speech invades the rights of another student. Whether this test applies to speech made off-campus was left unanswered, and lower courts were left struggling to supply a solution. Attempting to answer this question, a few circuit courts have created their own tests. The Fourth Circuit follows a "nexus" test, the Eighth Circuit applies a "reasonably foreseeable" test, and the Ninth Circuit uses a mixed approach.
While schools are limited in what off-campus speech they can punish, legislatures can regulate what school districts cannot reach. The North Carolina legislature passed an anti-bullying statute in 2009. The law was subsequently struck down as unconstitutional by the North Carolina Supreme Court in the case State v. Bishop.
This Comment will explore precedent surrounding a school's authority to punish off-campus speech, highlighting the tests used by the Fourth, Eighth, and Ninth Circuits. It will advocate that Tinker does not permit a school to punish an off-campus student speaker when the effects of the speech make its way on campus. This Comment will then critique specific North Carolina anti-bullying statutes and propose factors for a law that would better withstand judicial scrutiny.
Hannah Wallace, Reading, 'Riting, and Regulating Speech: Why Schools Can't Punish Off-Campus Speech and How the North Carolina Legislature Has Tried to Fill the Gaps, 40 Campbell L. Rev. 707 (2018).