A middle-school student uses Twitter to chat with friends about her anger over losing her boyfriend to another girl. The talk turns nasty. “Good Luck. Shoot her in the face,” one of the friends — “A.N.” — tweets back, adding later, “I hate her … I’ll kill her.”
Although the chatter is part of a jokey conversation punctuated with smiley-faces, the mother of the targeted girl is alarmed and alerts the girls’ school. The principal yanks in the two primary authors and tells them both they’re being sent to alternative school for 45 days.
Is this legal?
One suspended student’s mother, Melanie Nixon, says no. She’s challenging Tennessee’s Hardin County Middle School in federal court, alleging that the school violated the First Amendment in policing entirely off-campus social-media chatter.
In recent years, federal judges have been inclined to give schools broad authority over their students’ online lives, even when none of the activity involves school time, school computers or school functions. The justification is generally that online speech can have a disruptive spillover effect on the school day.
But that’s not what is happening in Melanie Nixon’s case. On Dec. 27, a federal judge in the Western District of Tennessee walked a careful middle path in refusing the school’s request to throw out Nixon’s claims.
Chief Judge J. Daniel Breen decided that the mere fact that “A.N.” and her target were enrolled in school did not satisfy the school’s burden under the Supreme Court’s Tinker standard, which provides that speech cannot be punished unless it threatens to substantially disrupt school operations:
Here, the speech had no connection to HCMS whatever other than the fact that both the speaker and the target of the speech studied there. The speech was not made at school, directed at the school, or involved the use of school time or equipment. No disruption of school activities or impact on the school environment has been shown.
The Tinker standard — created in the context of on-campus speech during the school day — pretty clearly is the wrong legal yardstick for school jurisdiction over off-campus speech on personal time. The two simply aren’t equivalent, since a student who is upset by speech on a social media page has the option of avoiding the speech that a student confined in a mandatory-attendance school building does not. But school attorneys are increasingly persuading judges to make that sloppy shortcut, so Judge Breen’s ruling breaks no new ground there.
Where the Nixon ruling is important — especially if it is upheld on appeal — is in its faithful application of Tinker as a muscular check on school overreaching. While schools can, and should, question students after receiving complaints that they might present a danger, once it’s established (as it was here) that no genuine threat exists, imposing punishment should require (at the very least) the Tinker level of proof that disruption was imminent.
Schools may argue that meaningful enforcement of the First Amendment makes their jobs harder. But it’s supposed to be hard to punish people for what they say. If a school has punitive authority over anything off-campus that makes one student upset, then schools are officially “government parents,” since the very existence of the complaint will be enough to establish that the behavior was upsetting. That isn’t just bad for cyberbullies — it’s bad for anyone who plans to use the Internet to express a strong opinion that a school might find disagreeable.
Judge Breen went on to reject the school’s fallback argument that punishment was lawful under the Supreme Court’s Morse precedent, which allowed a school to discipline pro-drug speech at a school-organized outing. School lawyers have tried to stretch the Court’s purposefully narrow 2007 ruling into a license to punish anything “bad,” but Judge Breen was having none of it:
The Court observes that the Morse Court placed much emphasis on the fact that the speech at issue occurred at school or at a school-sponsored event. As mentioned previously herein, there was no connection between the speech and the school beyond the common attendance of the persons immediately involved.
It’s natural for a judicial authority figure to empathize with a school disciplinarian over a foul-mouthed teenager. It’s encouraging to see a judge enforce common-sense boundaries making families, not government officials, the first responders when kids get into personal disagreements on their personal time.