NEWS RELEASE: Supreme Court urged to restrict colleges’ authority to discipline off-campus social media speech


March 27, 2017
Contact: Frank LoMonte, SPLC Executive Director
(202) 872-1704

First Amendment organizations are asking the U.S. Supreme Court to hear the case of a Minnesota community-college student kicked out of school over a dispute with a classmate on Facebook, arguing that colleges cannot punish off-campus speech merely because they regard it as “unprofessional.”

In a brief filed Monday, the Student Press Law Center and four other free-expression advocacy groups urges the justices to accept the case of Craig Keefe, who was removed from the nursing program at Central Lakes College in 2012 because a fellow student complained about an insulting remark he made during a series of Facebook wall posts.

A U.S. district court, and later the Eighth Circuit U.S. Court of Appeals, accepted the college’s rationale that Keefe could be summarily kicked out – without a formal expulsion hearing or appeal – because the college has the authority to enforce “compliance with professional ethical standards.” Keefe is now petitioning the Court to accept his appeal and overturn the appeals court’s 2-1 decision.

The brief was prepared by noted First Amendment scholar Eugene Volokh of the Banister First Amendment Clinic at the UCLA School of Law, assisted by UCLA law students, on behalf of the SPLC as well as the Cato Institute, the National Coalition Against Censorship, and the Electronic Frontier Foundation.

Keefe’s case began when he was called into the office of the college’s nursing dean and summarily removed from the nursing program over a series of posts on his Facebook wall, all of them written outside of class time. In the posts, Keefe humorously vented his anger over a noisy pencil sharpener in a classroom and over a frustrating group project. Keefe also called a fellow student a “stupid bitch” during a back-and-forth series of posts in which he argued that female students received preferential treatment in the nursing program. Keefe has challenged his removal as both a violation of the First Amendment and of his right to due process.

In the brief, the free-speech organizations point out that the lower-court ruling invites college administrators to impermissibly pick-and-choose among viewpoints and to exclude students who hold non-mainstream views or dissent from the standard orthodoxies of their professions.

The brief emphasizes the dangers of the college’s position that government officials running state educational institutions can “privatize” the First Amendment by treating all speech contrary to professional licensing codes as constitutionally unprotected: “A private association can adopt whatever views of professionalism it chooses; but the First Amendment prevents a public university from embodying such private associations’ views into officially enforced speech restrictions.”

“This case presents our best chance since the advent of social media to, finally, get clarity from the Supreme Court that off-campus speech is entitled to greater protection than speech inside of the classroom during school,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center. “This ruling was outrageous and extreme in two respects – first, that it allows for expulsion from college without any of the formalities accompanying expulsion if the college just chooses to call the expulsion ‘academic’ rather than ‘disciplinary,’ and second, that a college can punish ‘unprofessional’ speech even without showing that it disrupted the operations of the college one bit. Even a middle-school student is entitled to First Amendment protection unless her speech substantially disrupts school operations, and the Eighth Circuit’s misguided decision has left college students with lesser free-speech protections than 12-year-olds. It’s imperative that the justices overturn this incredibly dangerous precedent and restore some meaningful boundaries to colleges’ disciplinary authority.”

The justices are scheduled to confer March 31 on whether to accept the case, which requires four affirmative votes. If the case is not accepted, the Eighth Circuit’s ruling will stand as the final word on the case.