Tinkering with Students' Free Speech beyond the Schoolhouse Gate during the Digital Age

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I. INTRODUCTION 141 II. TINKER AND ITS PROGENY 146 III. CIRCUIT COURTS TINKER WITH STUDENT SPEECH IN THE DIGITAL AGE 152 A. The Second Circuit Reasonable Foreseeability Approach 153 B. The Indecisive Third Circuit 157 C. The Ninth Circuit Takes on Free Speech and Guns 159 D. The Chilling Effect 160 IV. CIRCUIT COURTS VS. NEW TECHNOLOGY 161 A. The Second Circuit 162 B. The Third Circuit 163 C. The Ninth Circuit 163 V. A NEW STANDARD TO TINKER 164 VI. CONCLUSION 166 I. INTRODUCTION Of that freedom one may say that it is matrix, indispensable condition, of nearly every other form of freedom. (1) Gone are days of sending letters in mail, using a library to find books rather than just as a place to study, or even simply calling a friend to talk on phone. With advent of computer, smart phones, and social media technology, communication has become virtually instantaneous. Studies show that on social media sites such as Facebook, the average American has 634 ties in their overall network.... (2) Thus, in a matter of seconds, anyone can write or post a video on Facebook that would be viewable instantaneously by hundreds of people. (3) However, as technology continues to advance at an exponential rate, law, which can hardly be said to evolve at a quick pace, struggles to keep up. (4) One of countless prevalent issues that Supreme Court will hopefully opine on in digital age is to what extent does First Amendment freedom of speech protect students online expressions via social media sites that enter schoolhouse gate. (5) To illustrate nature of cases that require Supreme Court's attention, juxtapose following cases: Wynar v. Douglas County School District (6) and Doninger v Niehoff. (7) In Wynar, plaintiff (Landon) was a sophomore student in high school who collected weapons as a hobby and would often brag about quality of his collection to his friends via internet. (8) One day, however, tone of Landon's instant messages to his friends via MySpace took a very disturbing turn. (9) He described, in great and quite morbid detail, his plan for a school shooting during which he boasted he could, get 50+ people and not one bullet would be wasted just after he referenced Virginia Tech shooting earlier in conversation. (10) Landon's friends brought instant messages to attention of school principal. Landon was initially suspended for ten days but soon afterward school increased punishment to ninety days. (12) Unlike Landon's threatening speech in Wnyar, Avery Doninger's speech in Doninger was not violent, and at first blush, appeared to be a form of political protest. (13) Avery Doninger was a member of Student Council and had organized a battle of bands event called Jamfest. (14) Once school administrators alerted Student Council that event had to be rescheduled, and possibly cancelled entirely as end of year approached, Avery decided to persuade school to reconsider. (15) First, Avery and other students sent out a mass e-mail to students urging them to contact superintendent, via e-mail and phone, to help save event. (16) Avery then posted on her blog, a publicly accessible site, stating that event was cancelled because of douchebags in school office. (17) Because of large number of phone calls principal received, and language used on blog, Avery was disqualified from running for Student Council office, and was not permitted to take office when she was voted in via write-in ballots. …