There’s a pivotal scene in the first theatrical “X-Files” film where David Duchovny’s Agent Fox Mulder, idling at a crossroads as he ponders which way to turn in pursuit of a fleeing suspect, instinctively stomps the pedal and barrels straight ahead across unpaved prairie.
Plowing your own road is a thrilling move — for a fictional hero in a sci-fi thriller. But it’s no way for judges to make constitutional law.
That bumpy makeshift route is the path chosen by five justices on the Minnesota Supreme Court last week, in deciding that the University of Minnesota did not violate the First Amendment in disciplining a student for entirely off-campus speech posted on her personal Facebook page.
The court decided UM could punish Amanda Tatro for joking remarks that, in the college’s view, reflected unfitness for her chosen course of study (mortuary science), because UM was merely enforcing “established professional conduct standards.”
The decision that the justices reached — while nowhere near as damaging to student rights as what the University of Minnesota wanted — simply was not among the permissible choices. The justices were at a crossroads. They looked left. They looked right. And then they drove straight.
You get points for creativity in the movies. In the judiciary, you get appealed and reversed.
To understand why the ruling is constitutionally unsustainable requires a little background on the law that governs student speech rights.
In 1969, the Supreme Court struck a First Amendment balance that recognizes broad, but not unlimited, free expression rights on the grounds of public schools. In Tinker v. Des Moines Independent Community School District, the court decided that schools may intercede to prevent or punish student speech only if the speech imminently threatens a “material” or “substantial” disruption of school operations. (Although Tinker took place in the K-12 context, it has often been applied in the college setting.)
The Court has recognized several narrow exceptions to Tinker over the years, most notably in the 1988 ruling, Hazelwood School District v. Kuhlmeier, which reduced the constitutional protection afforded to “curricular” speech that is part of a school academic function. But unless one of those narrow exceptions is a fit — and none was in Amanda Tatro’s case — then Tinker necessarily applies by default.
Of course, none of the U.S. Supreme Court’s student-speech rulings involve online speech created on personal time. Logic dictates that speech created outside of school cannot be less protected than speech in the middle of the cafeteria (and if anything, it should enjoy more protection). So the legal standard that applies to off-campus speech must necessarily be at least as protective of free expression as Tinker.
The Minnesota justices, however, explicitly avoided deciding whether Tinker is the right legal standard when speech takes place off campus. (The federal courts of appeal are split on this question; the Eighth Circuit, which covers Minnesota, has decided in the case of K-12 students that a Tinker analysis does apply to online speech created off-campus, if the speech threatens violence against other students.)
Here is how the Tatro court sidestepped Tinker:
The Tinker substantial disruption standard does not fit the purposes of the sanctions here. The driving force behind the University’s discipline was not that Tatro’s violation of academic program rules created a substantial disruption on campus or within the Mortuary Science Program, but that her Facebook posts violated established program rules that require respect, discretion, and confidentiality in connection with work on human cadavers.
But that detour is just not allowed.
If it’s true that the University of Minnesota didn’t punish Tatro on the grounds of creating a disruption — as the court appears to have concluded — then it was “game over.” Courts don’t get to salvage unconstitutional punishments by making up new, after-the-fact legal justifications.
The fact that Tinker said nothing about off-campus speech does not, of course, give courts free reign to create less rigorous legal standards for speech outside of school. The Tatro court appeared to recognize as much in a footnote, stating that “our analysis does not make a distinction between on-campus and off-campus Facebook posts.” In other words, the justices realized they were writing the legal standard even for on-campus Facebook speech — and on-campus speech simply cannot be punished unless it is substantially disruptive.
Nor can the Tatro ruling logically be confined to the Web; the Founding Fathers were pretty forward-thinking guys, but they included no “Facebook exception” in the First Amendment. So Tatro appears to apply to all student speech, including speech — T-shirts, baseball caps, armbands — that unmistakably is entitled to Tinker-strength protection.
In the Supreme Court’s most recent school-speech ruling, Morse v. Frederick, Justice Samuel Alito cast the decisive vote and wrote a concurring opinion (joined by Justice Anthony Kennedy) that conclusively shut the door on any further erosion of students’ First Amendment rights.
Acknowledging that the Court may have poked a hole in Tinker by allowing a school to punish a student for advocating illegal drug use — even where no “substantial disruption” ensued — Alito drew a boundary line across which the Minnesota Supreme Court has just left tire tracks:
I regard such regulation [of pro-drug speech] as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.
Tatro represents a significant “further extension.” For the first time anywhere, a court has said that speech is unprotected by the First Amendment regardless of whether it disrupts school activities, regardless of whether it uses “curricular” school channels of communication, and regardless of whether it encourages vulnerable young people to use drugs.
Since Morse, the Court has again been asked — and refused — to categorically exempt whole classes of speech from the First Amendment in United States v. Stevens (videos of animal abuse) and in Brown v. Entertainment Merchants Association (violent video games sold to minors). There is zero reason to believe that the Court would deviate from this recent and unbroken line of reasoning to carve out a new First Amendment exemption for speech violating “professional standards” — especially coming from an adult-aged college student off campus.
If further exceptions to Tinker are to be recognized, they must come from the U.S. Supreme Court. Only the Supreme Court can modify its own rulings.
Realistically, it is always a long-shot to bet on the U.S. Supreme Court accepting a case for review (if Amanda Tatro and her counsel are motivated to try). The Court typically takes cases where lower-court rulings are in irreconcilable conflict with each other — but Tatro is one-of-a-kind. So the Court may take a wait-and-see approach, knowing that a Tatro-like case eventually will come before the federal Eighth Circuit, which will speak with greater authority to questions of constitutional interpretation than a state court.
The Tatro ruling is provoking remarkably little response among the college students whose well-being is adversely affected. Some of that is the function of timing, with most students away for the summer and likely not following campus news.
But some also is misplaced trust in a university that, in seeking nearly limitless control over everything its students say based on phony “safety” justifications, has demonstrated itself to be untrustworthy.
The quietude seems unlikely to last. Because of the Eighth Circuit’s decision to apply Tinker to the off-campus speech of K-12 students, it is the law in Minnesota today that a 12-year-old middle-schooler has greater legal protection against her school overreaching into her off-campus speech than a 30-year-old medical student does.
When college recruits learn how hostile and backward the University of Minnesota is, they undoubtedly will vote with their feet. And when current students come back this fall and learn that their constitutional rights come with training wheels, they undoubtedly will use their remaining First Amendment freedoms to give President Kaler an earful.