[quote=DougW;2732635] [*]That the Tinker test isn't absolute. In both cases (Morse v Frederick, BethelvFraser) there was no student riot or major disruption, yet both cases sided with the school, allowing them to restrict & even punish speech.[/list]
But in considering
Morse you're omitting a very critical detail: the "speech" (actually a sign, for those who didn't read the case summary) was at a school-sponsored activity. Likewise for
Fraser, the speech took place at a school assembly.
The distinction here, which might require the Court to rule specifically once again (presuming a hypothetical case were even brought), is whether the school has the right to punish obscene/vulgar speech that does not take place on school grounds.
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And, my gut tells me the school system couldn't maintain a proper educating environment if every 5th grader in the country was allowed to go home and M'Fer their teacher via Twitter every day.
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And yet somehow they've managed, because surely you don't believe that no student has ever FU'ed a teacher on Twitter, Facebook or MySpace.
This also seems to beg the question of just how far the schools could go with it. If the potential audience of the internet/social media is a factor, then where is that line drawn? 12 people in the food court at the mall?
5 people at a table at Burger King? Is an audience of one sufficient? Does the makeup of that audience matter? Do family members at a restaurant represent a different audience than classmates at the same restaurant?
What about the speech itself? Is it the MF that makes it actionable? What about a non-expletive version of the same sentiment? Or what if it's simply an uncomplimentary opinion. I mean, our HS FB coach was the subject of considerable discussion once upon a time, as being the one of the worst offensive minds ever witnessed ... is that off-limits for student discussion outside the classroom as well?
All of this is, of course, slippery slope stuff. But that's exactly what you have when you exempt a governmental entity (or its representative) from Constitutional requirements.
Let me also note here however that this seems to be a clear Constitutional question. If other laws apply I have no problem with those being brought to bear. For example, under
Georgia law this could be construed as ground for a misdemeanor disorderly conduct charge, as it seems well within the bounds of "fighting words" (
words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other personīs presence, naturally tend to provoke violent resentment). If the teacher wanted to pursue that route, I've got no gripe with that decision (subject to the limitations of the law, which also requires the speech to be unprovoked)