UC Irvine Law Review

In the last thirty years, courts have steadily chipped away at the protections afforded student free speech on K-12 campuses by the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District. In Tinker, the Court held that schools may not restrict students’ right to speak unless the speech causes, or threatens to cause, a substantial disruption or infringes on the rights of other students. This Note argues that the diminishing force of Tinker’s protection of student free speech is largely the result of the difficulty of applying Tinker’s ostensibly straightforward holding, and of establishing the appropriate balance between maintaining a safe and effective learning environment and protecting students’ First Amendment rights. This Note proposes revisiting the heckler’s veto doctrine, which prohibits the government from restricting speech solely based on the disruptive or violent reaction of the listeners or onlookers (i.e., hecklers), as a way to push back against the increasing encroachment on students’ First Amendment rights. Although the Court articulated the principles of the heckler’s veto doctrine in Tinker, subsequent courts have failed to clearly identify the implications of the doctrine on the Tinker analysis, thus further weakening Tinker’s protection of student free speech. This Note argues that future courts deciding student free speech questions must explicitly address the heckler’s veto doctrine to prevent hecklers from contributing to the infringement on students’ constitutional right to both speak and hear. The Note concludes by suggesting a possible solution that aims to adequately balance competing student rights.