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Invasion of the rights of others and student speech
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As the Supreme Court continues to deal with the implications of Tinker, it should remain true to its original principle. We must get this right so that schools can address real harm without invading the free speech rights of their own students.
By David L. Hudson, Jr., Associate Professor of Law at Belmont University
Last updated March 6, 2025
In 1969, the U.S. Supreme Court famously declared in Tinker v. Des Moines Independent Community School District that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This landmark ruling clarified that students retain their First Amendment freedoms while on public school property. The Court explained that students are entitled to express themselves so long as their speech does not “materially and substantially interfere” with school activities. For over five decades, this “substantial disruption” test has been the benchmark for evaluating cases involving student speech.
But the Court also included a critical caveat: student speech that invades or intrudes on the rights of others may represent another kind of unprotected expression. In Tinker, the Court explained that Mary Beth Tinker, John Tinker, and Christopher Eckhardt’s decision to protest the Vietnam War by wearing black armbands to school did not collide “with the rights of other students to be secure” or disrupt “the work of the schools or the rights of other students.” The Court elaborated:
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.
Despite this acknowledgement, the Court has never explained what constitutes an “invasion of the rights of others” in this context. This leaves an : When does student speech cross the line into unprotected territory?
The amorphousness of this standard is not a new problem. As early as 1971, merely two years after Tinker, the U.S. Court of Appeals for the Second Circuit warned in that the phrase “invasion of the rights of others” was, to put it lightly, “not a model of clarity or preciseness.”
This question remains important, particularly as there are bullying and cyberbullying policies nationwide in school districts. School officials must address severe, targeted bullying. But as Justice Samuel Alito warned in his concurring opinion in Mahanoy Area School District v. B.L. (2021):
Bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech.
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The Supreme Court ruled that Mahanoy Area High School violated former high school cheerleader Brandi Levy’s First Amendment rights by suspending her over a Snapchat post.
Tinker’s “invasion of the rights of others” exception — if it exists — must be interpreted narrowly to prevent overreach. Otherwise, the exception could apply to much offensive or disagreeable speech — something anathema to fundamental First Amendment principles. As the Court famously declared in Texas v. Johnson (1989), the “bedrock principle” of the First Amendment is the protection of free speech, even when it is offensive or disagreeable.
What types of student speech could fall under this amorphous “invasion of the rights of others” standard? The U.S. Court of Appeals for the Eighth Circuit tackled this question in (1986), finding that the standard should only apply when student speech rises to the level of tortious conduct — such as defamation, invasion of privacy, or intentional infliction of emotional distress. As the court explained, “Any yardstick less exacting than potential tort liability could result in school officials curtailing speech at the slightest fear of disturbance.” However, the Supreme Court reversed this ruling, infamously creating a less protective standard for speech that is school-sponsored.
This left the meaning of “invasion of the rights of others” unresolved. In his dissent, Justice William Brennan argued that if this phrase is to have any substantive meaning, “it must be limited to rights that are protected by law,” otherwise school officials could use it to suppress any student speech that had “the slightest fear of disturbance.”
In its to the U.S. Supreme Court in L.M. v. Town of Middleborough, ݮƵAPP argued for a narrow application of this standard:
Tinker’s “invasion of the rights of others” exception is limited to cases of extreme, targeted conduct — direct physical interference with another student’s person, for example, or compelling or coercing another student to speak. It does not properly apply to speech that provokes disagreement or discomfort.
Similarly, legal scholar Catherine J. Ross proposes in her book, “,” that schools evaluate such cases using an “infringement matrix.” This framework considers whether the speech is face-to-face, severe, pervasive, objectively offensive, threatening, and aggressive.
Key lessons from landmark Tinker ruling still resonate today
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Even though the Court decided Tinker nearly 55 years ago, it remains the leading student K-12 decision and lower courts apply the standards from Tinker with regularity.
A narrow interpretation of the standard is essential. Otherwise, its application could swallow almost any student speech that listeners claim offends them. The danger is that invasion of the rights of others could be subject to a subjective standard. In order to avoid this possible subjectivity, the speech in question must be severe, pervasive, targeted and cause real, tangible harm. For example, if one student sexually or racially harassed another student in a severe and pervasive way, that could be speech that invades the rights of another person. Merely stray, insensitive, and offensive comments would not suffice.
As the Supreme Court continues to deal with the implications of Tinker, it should remain true to its original principle: “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” We must get this right so that schools can address real harm without invading the free speech rights of their own students.