When Justice Fortas famously wrote in 1969 that “[s]tudents in school as well as out of school are ‘persons’ under our Constitution . . . possessed of fundamental rights which the State must respect,” and “students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate,”1 he could not possibly have predicted that students would assert those “fundamental rights” while sitting in their bedrooms at night blogging about their classmates, tweeting about their teachers or posting about their schools on Facebook. Courts have thus been forced to grapple with just how far the landmark Tinker right to student expression extends when students post online, after school hours, and off school premises.
The results have been contradictory, with some courts upholding student speech rights online and some courts allowing school districts to punish students for such speech, even when it is done off campus. Recent cases have had conflicting resolutions, both in high school and college settings. Because the United States Supreme Court has yet to weigh in on the First Amendment implications of off campus student speech on social media and elsewhere on the internet, a definitive rule is hard, if not impossible, to enunciate.
High school student speech
Social media is wired into the daily routines of teens and young adults. The Pew Research Center reported in April 2015 that 92 percent of teens go online at least once a day – with 24 percent saying they are online “constantly” – with 71 percent of them using Facebook, 52 percent using Instagram and 41 percent using Snapchat.2 Teens increasingly use digitally aided communications – whether text-messaging or apps such as Kik Messenger3 – to carry on conversations that once would have been conducted verbally over the phone; the use of these technologies leaves a trail (at times, a publicly viewable one) that may come to the attention of school disciplinary authorities in the way phone conversations never did before.
SPLC’s Executive Director Frank LoMonte analyzed student speech in the context of school athletics in a 2014 article entitled “Fouling The First Amendment: Why Colleges Can’t, And Shouldn’t, Control Student Athletes’ Speech on Social Media,” in the Journal of Business and Technology Law. LoMonte wrote, “In the earliest generation of online-speech cases to reach the judiciary, courts readily concluded that off-campus speech—even when posted on widely viewable websites—was beyond the disciplinary authority of schools.”4 In those cases, courts regarded the location of the students’ speech (and the absence of proof that the speakers themselves ‘brought’ the speech onto the campus) as an important, if not decisive, consideration. But the Second Circuit’s 2007 decision in Wisniewski v. Board of Education of the Weedsport Central School District signaled a mentality shift in favor of school authority. Since Wisniewski, and since social-networking sites have achieved pervasive worldwide popularity so as to magnify the theoretical reach and durability of speech, courts have been significantly more inclined to indulge schools’ incursions into their students’ off-campus lives.”
LoMonte analyzed the glaring disparity among the federal circuit courts, stating that, “The Fourth and Eighth Circuits have expressly treated off-campus speech on social media as the functional equivalent of on-campus speech, equally subject to school authority within the bounds of Tinker.”5 Yet, he noted that “[t]he en banc Third Circuit has expressed doubt as to whether Tinker is adequately protective of speech taking place on the Internet outside of school time or school functions, while the Second Circuit has equivocated.”6
A sampling of recent cases illustrates the dire need for a definitive ruling from the Supreme Court so that both students and administrators have clear guidance as to what is and is not permissible. The cases make it clear that the question is even more fraught with difficulty when the speech at issue involves a potential threat of violence. As the Ninth Circuit U.S. Court of Appeals observed, “With the advent of the Internet and in the wake of school shootings at Columbine, Santee, Newtown and many others, school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights. It is a feat like tightrope balancing, where an error in judgment can lead to a tragic result.”7 When administrators are faced with speech, even off campus speech, that could pose a threat to students or others, the courts seem more inclined to let stand the determinations of school administrators that such speech has the potential to create a “substantial disruption” and thus is not protected by the First Amendment.8
A sampling of the cases
Landon Wynar, a sophomore at Douglas High School in Nevada, engaged in a string of increasingly violent and threatening instant messages sent from his home to his friends, bragging about his weapons, threatening to shoot specific classmates, and invoking the image of the Virginia Tech massacre. His alarmed friends notified school authorities, who suspended Wynar for ten days. Wynar had admitted that he wrote the messages, but stated that they were a joke. After his suspension, he and his father sued the school district, claiming that the suspension was a violation of his constitutional rights.
The lower court sided with the school administrators. The Ninth Circuit U.S. Court of Appeals, agreeing, acknowledged that “[t]he Supreme Court has not yet addressed the applicability of its student speech cases to speech originating off campus, such as Landon’s MySpace messages, which were written from home.”9 Yet, the court held that the school district was within its rights for temporarily expelling Wynar because “the messages, which threatened the safety of the school and its students, both interfered with the rights of other students and made it reasonable for school officials to forecast a substantial disruption of school activities.”10 The court determined that “when faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech that meets the requirements of Tinker. . .” Because the administrators perceived the speech to pose a real risk, it was not protected.11
Like Wynar, Taylor Bell, an 18-year-old senior at Itawamba Agricultural High School in Fulton, Mississippi, was punished by school administrators for off campus speech. Bell, an aspiring rapper, was suspended and transferred to an alternative school for his off-campus posting on YouTube and on his public Facebook page of a rap song that he recorded at a professional studio unaffiliated with his school. The rap song criticized, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at Bell’s high school.
In finding that Bell’s speech was protected by the First Amendment and that the school district was in error for punishing him, the Fifth Circuit U.S. Court of Appeals noted that “he used his home computer to post it on the Internet during non-school hours; and that the School Board did not demonstrate that Bell’s song caused a substantial disruption of school work or discipline, or that school officials reasonably could have forecasted such a disruption.”12 The court noted that even assuming that the Tinker “substantial disruption” test could be applied to a student’s off campus speech, there were no facts in this instance that Bell’s posting of his song on the internet created a “commotion, boisterous conduct, interruption of classes, or any lack of order, discipline and decorum at the school.”13
Although initially providing a victory for off campus student speech, the Fifth Circuit agreed to rehear the case en banc, and reversed itself on August 20, 2015, holding that the Tinker standard can apply to off-campus speech that could be reasonably forecast to cause a disruption. “The school board reasonably could have forecast a substantial disruption at school, based on the threatening, intimidating, and harassing language in Bell’s rap recording,” according to the majority Fifth Circuit opinion.14 On November 17, 2015 Bell’s attorneys filed a petition for a writ of certiorari, asking the Supreme Court to hear the case. On February 29, the Court declined to review Bell’s case.
College student speech
The cases are equally contradictory on the college level despite the fact that, as LoMonte pointed out, the Supreme Court “has spoken expansively of the importance of the free exchange even of challenging and unpopular ideas in the ‘marketplace’ of a college campus.”15 Two telling cases involving college students who were expelled for online, off campus speech have recently been decided.
Petroleum engineering major Navid Yeasin was expelled and banned from the University of Kansas after he tweeted a series of derogatory comments about his ex-girlfriend despite a no-contact order that had been entered against him at the ex-girlfriend’s request. Later justifying his posts as “venting,” Yeasin, who did not specifically mention his ex-girlfriend’s name and blocked her from seeing his private Twitter account, referred to her as a “psycho,” using expletives and mocking her appearance.
Yeasin, who would have graduated in May 2015, filed a lawsuit against the university, challenging his expulsion. The university, in defense of the expulsion, cited its Student Conduct Code, which states that students can be punished for policy violations that occur “while on university premises or at university sponsored or supervised events.” Kansas state court judge Robert Fairchild disagreed, and ruled that the university did not have jurisdiction to expel Yeasin because there was no evidence that the incidents that led to his expulsion occurred on campus. The University appealed the ruling and the Kansas Court of Appeals affirmed the district court judge’s opinion on September 25, 2015. The appellate court held that while Yeasin’s tweets were indeed “puerile and sexually harassing,” the university did not have jurisdiction to discipline student conduct occurring off campus.16 (While the ruling vindicated Yeasin’s right to be free from punishment for his off-campus speech, it was based more on an interpretation of the college’s own rules than the First Amendment, so the case’s value as precedent for future constitutional challenges is uncertain.)
The Student Press Law Center filed a friend of the court brief in the appellate court in the Yeasin case. Executive Director LoMonte stated, “This case provides an opportunity for the Kansas courts to recognize some rational stopping point where college punitive authority cannot follow students into their off-campus lives. While Mr. Yeasin’s speech addresses matters of purely private concern, a ruling that gives universities punitive authority over off-campus social media speech equivalent to their on-campus regulatory authority would be extraordinarily dangerous for whistleblowers and journalists. Social media increasingly is where news coverage is being delivered, and because colleges at times aggressively censor speech in the on-campus media outlets they subsidize, there must be some uncensored platform that is beyond the shadow of university punitive authority.”17
Like Yeasin, former nursing student Craig Keefe was expelled from college for online posts. While in Central Lakes College’s associate degree nursing program, Keefe made posts on his personal Facebook account, including belittling another student for receiving testing accommodations, asserting there was not enough whiskey to control the anger that arose out of a late change to a group project, professing his need for anger management, questioning whether anyone had heard of mechanical pencils and promising to give somebody a hemopneumothorax with an electric pencil sharpener, and calling a fellow student a “stupid bitch.” Two students separately reported the posts to an instructor after they were made uncomfortable by some of the language in them. The college determined that the posts were contradictory to the student handbook’s policy on professional behavior, although Keefe said that at least some of the statements were a joke. After the school removed him from the program, Keefe sued Beth Adams, the dean of the college, and other college officials who he said were responsible for the decision to expel him, for violating his First Amendment and due process rights.18
In August 2014, the U.S. District Court of Minnesota dismissed Keefe’s case, ruling that the college was entitled to discipline Keefe for the Facebook posts because they were enforcing academic standards of professionalism. The court thus upheld the college’s position that Keefe’s statements were unprofessional, and that Keefe lacked the necessary professionalism to continue in the program.19 Keefe’s appeal to the Eighth Circuit U.S. Court of Appeals is pending.
In both Yeasin and Keefe’s cases, the colleges justified the students’ punishment on their violations of the schools’ handbooks or codes of conduct. The question of whether colleges may discipline students for speech because it is deemed to be “unprofessional,” or because it violates a school’s “academic conduct standards,” goes far beyond just speech on social media. Can and should such codes of conduct apply to speech that is all online and off campus? The appellate court in the Yeasin case decided that it could not.
Conclusion
Despite the proliferation of student speech on social media and elsewhere online, the federal circuits and state courts remain divided over the level of First Amendment protection that should be accorded to such speech, created by students in their personal time in their homes or elsewhere outside of school. Several courts, including those discussed herein, have given school administrators discretion and authority to punish such speech in the same way that speech on school premises may be punished under Tinker’s disruption standard, especially when administrators perceive a real threat by the speech. Other courts, though, have declined to extend the Tinker standard that far away from the school setting. School administrators are faced with great uncertainty in finding the appropriate legal standard to balance student speech rights with their responsibility to maintain order, discipline and most of all safety.
The United States Supreme Court has yet to provide guidance. Prior to declining the Bell cert petition, the Supreme Court declined, in March 2015, to hear another student speech case presented to it. That case, however, did not involve online speech. Rather, it concerned students at Live Oak High School in Morgan Hill, California, who were barred from wearing American flags on their T-shirts on Cinco de Mayo, a year after a confrontation between flag-waving Anglo and Mexican-American students.20
Whether tweets, Facebook posts and blogs are fully protected by the First Amendment, or whether schools can punish students for such speech, when done off campus, is a question that the United State Supreme Court will ultimately have to settle. In the Bell cert petition, the petitioner states that “[c]ourts of appeals and state high courts are hopelessly splintered over whether, and if so when, Tinker applies to student speech outside of the school environment.” Now that the Court declined to hear the Bell case, it could be years until a comparable case is presented again. When that happens, the Court has the opportunity to determine that because of the current state of uncertainty, the time has come to redefine the Tinker disruption standard in light of the way students are incorporating social media messaging into their everyday communication routines.
Attorney Carolyn Schurr Levin is a lecturer and the media law adviser for the Stony Brook University School of Journalism and the interim director of the journalism program at LIU Post, Long Island University. She is the former vice president and general counsel of Newsday and a veteran college newspaper adviser.
Footnotes:
1. Tinker, v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)
2. Amanda Lenhart, Teens, Social Media & Technology Overview 2015 (Pew Research Center April 2, 2015).
3. Released to the public in October 2015, Kik now claims to be used by 40 percent of American teens. http://www.kik.com/about/
4. Frank D. LoMonte, “Fouling the First Amendment: Why Colleges Can’t, and Shouldn’t, Control Student Athletes’ Speech on Social Media,” 9 J. Bus. & Tech. L. 1, 10 (2014).
5. Id. at 12.
6. Id. at 12-13.
7. Wynar v. Douglas County School District, 728 F.3d 1062 (2013).
8. The Tinker court held that “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, 393 U.S. at 513.
9. cdn.ca9.uscourts.gov/datastore/…./11-17127 web corrected.pdf.
10. Id.
11. Id.
12. Bell v. Itawamba County Sch. Bd., 774 F.3d 280 (2014).
13. Id.
14. www.ca5.uscourts.gov/opinions\pub\12/12-60264-CV2.pdf
15. Frank D. LoMonte, Fouling the First Amendment: Why Colleges Can’t, and Shouldn’t, Control Student Athletes’ Speech on Social Media,” 9 J. Bus. & Tech. L. 1, 10 (2014).
16. Yeasin v. University of Kansas, 360 P.3d 423 (Kan. App. 2015).
17. http://www.splc.org/article/2015/06/yeasin-kansas-twitter-punishment-splc-amicus.
18. Keefe v. Adams, 44 F.Supp.2d 874, 883 (D. Minn. 2013).
19. Id. at 888.
20. In Dariano vs. Morgan Hill Unified School District, 767 F.3d 764 (9th Cir. 2014), cert. denied, 2015 WL 1400871, the Ninth Circuit affirmed the district court’s holding that the students’ shirts constituted a threat of substantial disturbance.