This article examines the Supreme Court’s student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex – given schools’ experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech – the blurring of that distinction has become increasingly problematic, both doctrinally and theoretically.
In this article, I assert that the current framework, while appropriate when the speech restriction takes the form of suppression, is insufficient when applied to student punishment. The free speech and due process interests implicated by punishing students for their speech require additional protection. In order for a school to constitutionally punish a student for her speech, it should not be enough to show that that speech could itself be suppressed under the key Supreme Court cases. Schools should also have to show that (1) the student speaker had adequate prior notice that the speech was prohibited, and (2) the actual punishment was reasonable.
Emily Gold Waldman, Regulating Student Speech: Suppression Versus Punishment, 85 Ind. L.J. 1113 (2010).