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Hastings Constitutional Law Quarterly

Abstract

Morse v. Frederick marked the Supreme Court's first decision addressing the First Amendment rights of public school students in nearly twenty years. This Article analyzes the decision in light of the Court's prior decisions since the landmark Tinker case, and speculate on the future of student speech cases. In addition, it examines the impact the decision could have on what looks to be the new frontier of student First Amendment rights: public school regulation of on-line speech-student "cyberspeech."

Cyberbullying, inappropriate contact between adults and minors, inappropriate (sometimes illegal) activity posted for all to see on social networking sites like MySpace-all have outstripped existing school conduct codes. Since most material is produced off-campus, school officials are unsure how far their authority to regulate it extends. On the other hand, given the fact that schools are awash in gadgets that permit students to access the Internet, text or e-mail one another, and send pictures and video, the line between on-campus and off-campus speech is blurring. It's becoming difficult to keep speech out of schools, even if schools (and perhaps the speaker) want to. The reported cases are few and school systems continue to struggle with the issue. Though it did not involve Internet speech, Morse's peculiar facts offered the Court the opportunity to provide some guidance to school officials, and an opportunity for it to clarify the scope both of students' First Amendment rights and school officials' authority to regulate them. Unfortunately, Morse's self-conscious minimalism raises more questions than it answers, especially for student cyberspeech.

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