Student Speech and Social Media: The Supreme Court Finally Enters the Fray
Round 1
Reviewer 1 Report
This is an important and timely topic. The first part—the summary and analysis of the Supreme Court rulings on student freedom of expression—is excellent. It is clear and concise and explains the main points. The second part—describing current legal issues/rulings related to Levy—is also good. The third part—the policy prescriptions for extracurricular activities—should make its purpose clearer. If the main purpose is to provide recommendations for school officials who want to adopt policies that can withstand constitutional challenges, then that should be stated, because the purpose shapes the substance of the recommendations. The author declares that it is of utmost important that the Supreme Court continue to recognize that freedom of expression is of “paramount importance” to teach civic engagement. However, the policy recommendations are weighted toward school officials’ duty to provide ordered learning—and therefore “educators” should be given broad executive discretion to determine how best to do so where “privileged extracurricular activities” are concerned. Although public schools are a corporate entity (legally), they include officials with different interests. The manuscript would benefit from referencing views other than the School Business Affairs—perhaps noting the official language on student freedom of expression by the National School Board Association, or Journalism Education Association. The policy recommendations seem to rely on process to protect substance. That is, the emphasis on pluralism, clarity, signing consent agreements, and procedures tends to detract from the fact that the paramount goal seems to be preventing undermining authority (line 332) or to reinforce respect for authority. This echoes Justice Black’s memorable dissent in Tinker, which lamented the Court’s role in undermining authority—a viewpoint the Court subsequently supported by curbing student rights.
The legal regime governing student freedom of expression is indeed developing. The courts are likely to play a role in defining the regime because technology and its changing uses move much faster than the legislative process in an era when the American open system of government provides so many access points where government actions can be challenged. Furthermore, video essays are become a more popular form of communication for young people, therefore interpreting the meaning of images will be harder. The language boundaries—the guiderails—are being lowered or widened. The coarseness of public discourse is relevant because cultural expectations determine the boundaries of freedom of expression similar to the way that social media and ubiquitous cameras have changed expectations of privacy. The manuscript supports the management model rather than market model of freedom of expression at a time when there are broader debates about the legal regime governing freedom of expression. The Supreme Court has been moving in different directions: it has broadened constitutional protection for advertising, campaign contributions, and corporations, while narrowing student rights. This is relevant because the public school civic education model is considered vital self-protection in an age of unmediated media, advocacy journalism, fake news, and declining support for democracy. The thorny questions about policing content (expressive behavior) cannot be avoided by claiming 1) consent (the students and parents signed the “consume” consent forms); or 2) procedures. The time, place, and manner—and perhaps even person (elementary school, high school, or college student) tests remain the foundation of the legal regime governing student freedom of expression—as it is for employee freedom of expression.
The special issue in which this manuscript is to be published declares a commitment to the right to education, the full development of personality, and parental rights to choose. The means to these ends include having those government officials who make and administer the rules to develop rules that establish what is out of bounds rather than prescribing what is legal.
NOTE: While generally well-written, there are several lines that are not clear (308-310) or duplicate (339-340), or other issues (lines 304, 229, 438).
Author Response
Please see below and attached
This is an important and timely topic. The first part—the summary and analysis of the Supreme Court rulings on student freedom of expression—is excellent. It is clear and concise and explains the main points. The second part—describing current legal issues/rulings related to Levy—is also good.
Thank you.
The third part—the policy prescriptions for extracurricular activities—should make its purpose clearer. If the main purpose is to provide recommendations for school officials who want to adopt policies that can withstand constitutional challenges, then that should be stated, because the purpose shapes the substance of the recommendations.
I added the bolded language on page 24.
The author declares that it is of utmost important that the Supreme Court continue to recognize that freedom of expression is of “paramount importance” to teach civic engagement. However, the policy recommendations are weighted toward school officials’ duty to provide ordered learning—and therefore “educators” should be given broad executive discretion to determine how best to do so where “privileged extracurricular activities” are concerned. Although public schools are a corporate entity (legally), they include officials with different interests. The manuscript would benefit from referencing views other than the School Business Affairs—perhaps noting the official language on student freedom of expression by the National School Board Association, or Journalism Education Association.
Please note that I have deleted the citation in footnote 21, added articles from law reviews at footnotes 1, 4 (language also modified), 8 (new); I also added new footnotes 53 and 54.
The policy recommendations seem to rely on process to protect substance. That is, the emphasis on pluralism, clarity, signing consent agreements, and procedures tends to detract from the fact that the paramount goal seems to be preventing undermining authority (line 332) or to reinforce respect for authority. This echoes Justice Black’s memorable dissent in Tinker, which lamented the Court’s role in undermining authority—a viewpoint the Court subsequently supported by curbing student rights.
Please note that I added note 54 on this point. Thank you.
The legal regime governing student freedom of expression is indeed developing. The courts are likely to play a role in defining the regime because technology and its changing uses move much faster than the legislative process in an era when the American open system of government provides so many access points where government actions can be challenged. Furthermore, video essays are become a more popular form of communication for young people, therefore interpreting the meaning of images will be harder. The language boundaries—the guiderails—are being lowered or widened. The coarseness of public discourse is relevant because cultural expectations determine the boundaries of freedom of expression similar to the way that social media and ubiquitous cameras have changed expectations of privacy. The manuscript supports the management model rather than market model of freedom of expression at a time when there are broader debates about the legal regime governing freedom of expression. The Supreme Court has been moving in different directions: it has broadened constitutional protection for advertising, campaign contributions, and corporations, while narrowing student rights. This is relevant because the public school civic education model is considered vital self-protection in an age of unmediated media, advocacy journalism, fake news, and declining support for democracy. The thorny questions about policing content (expressive behavior) cannot be avoided by claiming 1) consent (the students and parents signed the “consume” consent forms); or 2) procedures.
However, as I posit, because extracurricular activities are privileges not rights, their access can be limited by reasonable rules. See also Palmer.
In addition, I added 2 paragraphs on page 22-23. As a former secondary school educator,
Also, please see my minor addition on p. 4.
The time, place, and manner—and perhaps even person (elementary school, high school, or college student) tests remain the foundation of the legal regime governing student freedom of expression—as it is for employee freedom of expression.
The special issue in which this manuscript is to be published declares a commitment to the right to education, the full development of personality, and parental rights to choose. The means to these ends include having those government officials who make and administer the rules to develop rules that establish what is out of bounds rather than prescribing what is legal.
Good commentary. I believe have addressed these in what I have added.
Thanks.
CJR
NOTE: While generally well-written, there are several lines that are not clear (308-310) or duplicate (339-340), or other issues (lines 304, 229, 438).
Please see the list below from the first round of edits; I do not have a copy with line numbers but believe I caught everything.
Plus, I corrected an error in the Tinker citation in note 1 and in then references.
Please see my corrections of typographical errors on the following pages in track change. (bold represents later edits)
Page Action
Abstract corrected a typographical error
2 filled in note 2
Date moved in 2d article in note 3
4 removed stray initials
5 modified Vietnam to View Nam for consistency
6 deleted a redundant word
date corrected
8 re-wrote a sentence for clarity
added a hyphen
10 added “in” to start paragraph
11 corrected a typographical error
13 added two words
note 27, modified a few words as noted
note 28, modified a few words as noted
14 modified a sentence, 1st para, 2d line
Modified a sentence in the 2d para
16 deleted one word, modified another
17 corrected a misspelling
18 footnote 42, added citation, replaced supra
19 footnote 43, replaced a stray parenthesis
20 corrected a typographical error on the first line
re-wrote a sentence for clarity
21 changed font in a footnote
changed “adopted the position” to “emphasized”
22 re-wrote a sentence for clarity
22-23 added 2 paragraphs in response to commentary
note 51, modified font
23 modified start of 2d full paragraph
note 52, deleted stray comma
24 re-wrote a sentence for clarity
27 bottom, extra period deleted
corrected a typographical error
deleted words in point 7
changed font in a footnote
29 added a postscript as an update on later developments
Reviewer 2 Report
This article analyzes the First Amendment issues involving cyberspeech. This issue is particularly relevant right now because the U.S. Supreme Court agreed to hear the Levy v. Mahanoy case. The author lays out a very detailed context section and accurately discusses all of the earlier lower court decisions focused on student cyberspeech. The author highlights what school officials need to consider broadly when these issues arise in schools. The recommendations offered are especially insightful.
When conducting a review, I typically have many, many suggestions and critiques for authors. This manuscript, however, is extremely well done. The author clearly did the research, is an expert in this area, and is a strong writer. Surprisingly, I have no criticisms. There were a few very minor typos that the author will easily catch with a careful read. There is no need for me to point these out.
Author Response
Thank you for the kind comments.
I have addressed the typos.
Author Response File: 
Author Response.docx
Reviewer 3 Report
This is an outstanding piece of scholarship, which will make a significant contribution to the literature on this very important topic. Digital student speech is one of the key issues of primary and secondary education today, and this article assesses the approach taken in US law and offers some very useful policy proposals. The article is very well written and thoroughly researched; it is a pleasure to read. It should be published as is.
Author Response
Thank you for the kind comments.
I have corrected the typos.
Author Response File: Author Response.docx
