A case that began with a series of Facebook posts and reached a court ruling that challenged First Amendment protections for students on social media is now making its way to the Supreme Court.
On Feb. 23, attorney Robert Corn-Revere entered a petition to the Supreme Court on behalf of Craig Keefe to appeal the decision of the Eighth Circuit U.S. Court of Appeals. In October 2016, the court ruled against Keefe, 2-1, in his lawsuit claiming that, in his expulsion from Central Lakes College, he was denied due process under the college’s disciplinary procedures.
In December 2012, Keefe was expelled from Central Lakes College’s nursing program for Facebook posts he made on his public personal account. Two fellow students showed some of the posts – that included describing a classmate as a “stupid bitch” – to an instructor, and the college determined that by posting these comments, Keefe had violated student handbook policy regarding professional behavior.
In February 2013, a month after his appeal against his expulsion was denied, Keefe filed a lawsuit against the dean of the college, Beth Adams, along with other college administrators.
The U.S. District Court of Minnesota dismissed his case in August 2014, so Keefe, with the support of advocacy groups including the SPLC, took the case to the Eighth Circuit. The author of the majority opinion, Judge James Loken, wrote that the court accepted the college’s argument that it had the legal authority to hold students to the standards of their intended profession.
In the opinion, Loken also wrote that this decision didn’t mean that unprofessional speech was prohibited, but that the university has a right to impose “adverse consequence on the student for exercising his right to speak at the wrong place and time, like the student who receives a failing grade for submitting a paper on the wrong subject.”
Keefe’s petition challenges this notion, arguing that it misrepresents the student-school relationship, particularly where it involves public universities such as Central Lakes.
The petition separates the appeal into two issues: Whether a public community college has the authority to expel a student for posting comments on a personal Facebook account unrelated to the school’s curriculum, and whether that college may carry out such expulsions with “less rigorous due process procedures” in such cases.
In Keefe’s petition, his legal counsel writes that the case has identified four areas which now demand clarification about the limits of First Amendment application when professional standards are used to restrict non-curricular speech. The petition argues that under the Eighth Circuit ruling, public colleges and universities have been given undue ability to hold students to professional standards for speech that has no relation to the professional context.
“There is no suggestion that the Petitioner was unprofessional in his coursework or behavior in the clinical setting even if his Facebook etiquette left something to be desired. CLC violated the First Amendment when it expelled him for personal social media postings unconnected to any course requirement under conduct codes based on amorphous professional standards,” the petition states.
The petition also cites the Tinker v. Des Moines case, arguing that it remains unclear how the “Tinker test” applies to speech that was both originated and disseminated off-campus.
“In this case, the Eighth Circuit went in exactly the opposite direction, extending Tinker to college settings and interpreting static Facebook posts as being ‘directed to’ other students simply because they referred to them, and inflating oblique, disrespectful comments into ‘threats,’” the petition state.
The case is particularly pressing for student journalists, since the ruling cites the Supreme Court’s Hazelwood v. Kuhlmeier standard in concluding that colleges can penalize unprofessional speech created off-campus on personal time. In his majority opinion, Loken wrote that the “concept” of Hazelwood – that a school can regulate speech if it contravenes the school’s pedagogical concerns – “has broader relevance to student speech.”
This argument misapplies Hazelwood, which was not a disciplinary case, and which was concerned with a student spreading speech through a school conduit, risking conflating their views with the school’s own. These principles do not apply in Keefe’s situation, where there was no way to mistake his posts on his own Facebook account as representative of the school’s views, in a setting where (unlike in a K-12 newsroom setting) there are significant questions whether the institution has any authority at all.
The petition lists several complaints with the court’s use of Hazelwood, including that it “flies in the face of multiple circuit decisions that college students cannot be relegated to the First Amendment protections appropriate for younger children” and that it “only adds to the confusion by suggesting there is even more of an interest in applying Hazelwood to CLC’s professional degree program than to a high school newspaper.”
Corn-Revere cited the 2007 case of Morse v. Frederick, where the Supreme Court ruled that the First Amendment does not prevent educators from suppressing student speech that is viewed as promoting illegal drug use, but also said that additional First Amendment exceptions beyond promoting drug use would not be recognized. Judge Jane Kelly had cited the case in her dissenting opinion in the Eighth Court.
“This is certainly significant for student journalists,” Corn-Revere said. “Given the Morse v. Frederick case in 2007, it is important to ask the court to clarify if that applies.”
Corn-Revere explained that it is now up to the court to decide whether to direct the college’s legal counsel to file an opposition. He anticipates that the court will determine this during the current term.