Free-speech groups defend Minn. college student punished for jokes on Facebook

FOR IMMEDIATE RELEASEContact: Frank D. LoMonte, executive director703.807.1904 /

In a friend-of-the-court brief filed Monday, the StudentPress Law Center urged the Minnesota Supreme Court to uphold the FirstAmendment rights of college students to use Facebook and othersocial-networking sites to comment on school policies and events without fearof retaliation.

The SPLC filed its Nov. 7 brief in support of Amanda Tatro,a University of Minnesota mortuary science student who was punished after aclassmate reported discomfort with a joking remark on Tatro’s Facebook page,which Tatro wrote on her personal time while off campus. A lower court upheldthe university’s punishment of Tatro, disregarding Tatro’s argument thatstudents are entitled to greater First Amendment freedoms when speaking offcampus.

“There is no surer way to suppress students’ civicinvolvement than to tell them that talking about their schools off campus—evenif attempting to engage public support on matters of public concern—will bepunishable if the school, in its deferentially reviewed discretion, decidesthat the speech has the potential to provoke a ‘disruptive’ level of on-campusdiscussion,” the SPLC said in the brief.

The SPLC is a nonprofit organization founded in 1974 to advocatefor the free-press rights of student journalists. The Center was joined in thebrief by the Foundation for Individual Rights in Education, Inc., a nonprofitthat defends the individual liberties of college students. The SPLC’s brief wasprepared and filed with the assistance of volunteer attorney Dawn VanTassel, apartner in the Minneapolis office of Maslon Edelman Borman & Brand, LLP.

The University of Minnesota opened a criminal investigationin December 2009 after a classmate complained that one of Tatro’s Facebookposts – joking about stabbing someone with a dissecting knife, in reference toan ex-boyfriend – made her feel unsafe. Police concluded that Tatro posed notrue threat and closed the case, but the university initiated a disciplinarycase based on that Facebook post and on two others in which she joked aboutnicknaming the cadaver she was assigned to dissect.

A disciplinary committee decided, and the university provostagreed, that Tatro should receive a failing grade for the anatomy lab class,take an ethics course, circulate an apology letter, undergo a psychiatricevaluation, and spend the rest of her college career on academic probation.Tatro appealed the sanctions to the Minnesota Court of Appeals.

The Court of Appeals ruled in July 2011 that Tatro’s speechwas punishable under the same standard that would apply to the on-campus speechof a high school student – the standard that the U.S. Supreme Court created inthe 1969 case of Tinker v. Des MoinesIndependent Community School District in the context of an on-campusanti-war protest. The Tinker standardenables schools to punish students based on the content of their speech –something government agencies normally cannot do – if they can show that thespeech threatened to substantially disrupt classwork.

Attorney Frank D. LoMonte, executive director of the SPLC,said that although the case ostensibly involves jokes posted on Facebook, thelegal standard adopted by the Minnesota court also will govern colleges’ levelof control over students’ online journalistic and editorial work.

“The Tinkerstandard may strike the proper balance when minors are speaking to a captiveaudience at a K-12 school, but it has no place on the campus of a college, letalone off the campus of a college ona student’s personal Web page,” LoMonte said.

LoMonte said the most troubling part of the case was thelower court’s acceptance of the school’s rationale that Tatro “substantiallydisrupted” school because news coverage about the controversy caused somesupporters of the university’s mortuary program to call expressing concern andto waver in their support of the program.

“Extending the Tinkerlevel of control to a college student’s off-campus speech will be the end ofinvestigative journalism or whistle-blowing. If the lower court is notreversed, it literally will be the case in Minnesota that a public universitycan order its students never to say or write anything – no matter where, nomatter when – that might alienate the college’s donors,” LoMonte said.

“The University of Minnesota should be embarrassed to standin front of a court asserting its intention to treat its students like12-year-olds,” LoMonte said. “Many of the University of Minnesota’s studentsare adults in their 20s, 30s and 40s, who are old enough to sign contracts, getmarried, purchase firearms and join the military. They are entitled to the fullbenefit of the Constitution that some of them have risked their lives in battleto defend when they are speaking outside of class time using their own personalWeb pages.”

No time has been set for the Court to hear or decide thecase. Tatro is represented by Minneapolis attorney Jordan S. Kushner.

More information aboutthe work of the Student Press Law Center is available on its website