Speech outside of school is protected

The NYT has described the case in this article with this blurb:

The case presents an important question that several judges have urged the Supreme Court to decide: When may students be punished for things they say outside of school?

In my world, we call that a rhetorical question. The answer surely ought to be “Never.” The idea that schools get a little extra power than the state in general goes back to the landmark case of Tinker, in which the Court held that students could wear black armbands in school to protest the Vietnam War. The standard it established was that student speech was protected when it did not materially disrupt school activities.

Here are some quotes from Tinker that should clarify why I think it’s abhorrent to free speech that cases like this even get past summary judgment:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Tinker, at 506.

A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others.

Tinker, at 512–13.

But conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

Tinker, at 513.

Tinker talked about expanding classroom freedom of expression to all school activities. Nowhere did Tinker even suggest that the school could extend its reach to actions outside of school and school-sponsored activities.

This case, involving a rap/hip-hop song, is no different for the purposes of free speech analysis from a letter to the editor or a poem published in a literary magazine. Whether you like this form of expression or not, and whether you snicker at the names of the artists coming to the student’s support or not: you ought to recognize that the problem here starts with the restriction of speech that takes place outside of school and ends with what is almost certainly viewpoint discrimination – I doubt anyone can argue that the school would have punished the student for writing a song supportive of the lecherous coaches. That’s the dirty secret hidden inside of almost all of these cases: schools almost always only seek to regulate speech with which they disagree. Viewpoint discrimination is effectively an automatic loss in free speech analysis.