Students' First and Fourth Amendment Rights in the Digital Age: An Analysis of Case Law

Abstract

In January, 2012, the Supreme Court of the United States refused to hear three cases involving student online speech, or cyberspeech. This indicates that the Court is content with lower courts applying First Amendment jurisprudence developed over 40 years ago to a rapidly advancing digital environment where students carry the equivalent of personal computers in their pockets, have an ever-growing telepresence, and rely on cyberspeech as their primary means of communicating with the world around them.

Lower courts also are beginning to grapple with challenges to students Fourth Amendment right to be free from unreasonable search and seizure as it relates to the digital environment described above. Recently, lower courts in Mississippi, Texas, Minnesota, and Kentucky have applied standards set forth decades ago to decide cases involving searches of students mobile devices and Web 2.0 applications.

Given the absence of guidance from the Supreme Court, this study aims to: (1) identify and analyze trends in the current application of legal standards related to student cyberspeech and search and seizure in the digital age; (2) synthesize these findings into a set of essential guidelines for school officials to use as they navigate a legal landscape that has yet to be well defined; and (3) make recommendations to further develop the body of law. Findings indicate that school officials have the legal authority to restrict off-campus student cyberspeech when certain conditions are met, and Tinker governs cases in this area. Seriously threatening, slanderous, or obscene cyberspeech is not constitutionally protected and can be restricted prior to an actual disruption. Off-campus student cyberspeech that reaches the school can legally be restricted so long as evidence shows that it caused a material and substantial disruption.

In addition, students possess reasonable expectations of privacy in their personal mobile devices and password-protected private Web 2.0 communications. T.L.O governs searches of students personal mobile devices and Vernonia appears to govern cases involving searches of students Web 2.0 applications. Substantive suspicion at the outset, carefully tailored searches, and a clear governmental interest will keep school officials from violating students Fourth Amendment protections.