SPLC urges Eighth Circuit to protect students' off-campus speech on social media



Frank LoMonte, Executive Director, Student Press Law Center

703.807.1904 / director@splc.org

In a brief filed Monday, a coalition of free-speech groups led by the Student Press Law Center asks a federal appeals court to overturn a ruling that upheld a Minnesota college’s decision to expel a nursing student for “unprofessional” comments posted off-campus to his personal Facebook page.

“There is no ‘unprofessionalism’ exception to the First Amendment when the regulator is a college and the speaker is a student using personal, off-campus means of communication. For the welfare of America’s most vulnerable journalists, this Court must say so unequivocally,” says the friend-of-the court brief filed with the St. Louis-based Eighth Circuit U.S. Court of Appeals in the case of Keefe v. Adams.

Craig Keefe sued five administrators of Minnesota’s Central Lakes College for violating his First Amendment and due process rights after they summarily removed him, without a disciplinary hearing, from the nursing program after receiving two complaints about posts on his Facebook page. While most of the posts were about Keefe’s perception that the college discriminated against male nursing students, the discipline focused on an angry name-calling exchange with another student.

In August, U.S. District Judge Joan N. Ericksen threw out Keefe’s case, finding that the speech was unprotected by the First Amendment because it violated standards of the nursing field that require “professionalism.”

SPLC is supporting Keefe’s appeal to the Eighth Circuit in an amicus brief joined by the American Booksellers Foundation for Free Expression, the Electronic Frontier Foundation and the National Coalition Against Censorship. The brief was prepared and filed with the assistance of SPLC attorney volunteer Leita Walker of Faegre Baker Daniels LLP in Minneapolis. A former journalist, Walker focuses her litigation practice on media, advertising and privacy law.

“A government agency, like a state college, cannot punish people for failing to be on their best workplace behavior at all hours of the day and night,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center. “If colleges are given the authority to throw out students for entirely subjective disapproval of their speech, it will be open season on journalists, commentators and whistleblowers.”

The district court found that Keefe was not entitled to the due process required for a disciplinary expulsion because his expulsion was “academic” in nature, imposed by his academic department based on a violation of the professional standards of the field. Bu the SPLC brief points out that students are given full due-process protection for other acts of off-campus misconduct, even dangerous crimes: “Had Keefe been caught with drugs or gotten into a bar brawl, his removal would have been recognized as disciplinary and received due-process formalities. Speech cannot be placed into a uniquely lesser-protected category than felony criminal behavior.”

The brief points out that college students’ speech, even when coarse and angry, has always been afforded the fullest protection of the First Amendment outside of the classroom setting, pointing to the U.S. Supreme Court’s 1973 ruling in Papish v. Board of Curators of University of Missouri. In that case, the Court found that a student could not be disciplined for distributing a homemade newsletter on campus that used strong profanity and graphic cartoon images to address political issues, speech analogous to what Keefe posted on Facebook in venting about perceived sexism at the college.

The brief urges the appeals court to disavow the Minnesota Supreme Court’s erroneous 2012 ruling, Tatro v. University of Minnesota, which purported to create a new exception to the First Amendment, never recognized by the U.S. Supreme Court, for college students’ speech that violates “established professional conduct standards.” The Tatro “professionalism” standard, on which the district court relied in dismissing Keefe’s case, is irreconcilable with U.S. Supreme Court precedent and should not be followed, the brief argues.

“When the Tatro case was being heard, we warned that giving colleges the authority to enforce vague ‘professionalism’ standards to punish students’ off-campus social media speech would lead to abuses, and Craig Keefe’s case is emblematic of that abuse,” LoMonte said. “The bizarre result of the Tatro case and the district court’s ruling in this case is that college students can be expelled for off-campus speech based on weaker evidence than would be required to suspend a middle-schooler speaking in the hallway during school.”

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.