This page was last updated: Jan. 28, 2021
Student journalists have been using social media for years to report and distribute content, but the law surrounding rights and responsibilities when it comes to social media is still evolving in many ways. The law is constantly changing, but here’s our best analysis of some common questions that may help you as you navigate social media, whether you’re using it as a part of your reporting duties or just in your personal life.
For direct help, or if your question wasn’t answered on this page, contact SPLC’s free legal hotline.
Q: What authority do public school officials have to punish me for my off-campus use of Twitter, Snapchat, Instagram and other private social media platforms?
A: That’s a much-debated question that depends on where you are and what you’re posting. First, there is no debate that school officials’ authority to control or punish you for speech outside of school is much more limited than when you’re in school. But some courts have used the U.S. Supreme Court decision Tinker v. Des Moines to allow schools to punish students for their off-campus speech when administrators show that it would have a direct, disruptive effect on school operations.
SPLC has argued, with others, that school officials should have almost no authority over students’ off-campus speech. That is, students should not automatically be put into some “second-class citizen” category allowing a principal or other school official to police their speech 24/7, but should generally have the same First Amendment protections as everyone else when away from school. Likewise, students are fully responsible for their speech and subject to the same laws and restrictions.
The U.S. Supreme Court will hear a case in April 2021 that addresses the question of whether the Tinker standard should apply to students’ off-campus speech. The case involved the punishment of a student who posted a vulgar comment on her Snapchat while away from school one weekend. The Third Circuit held that school officials cannot use the decision in Tinker to target students’ off-campus speech that occurs on platforms that are not owned, operated or otherwise tied to the school. The Supreme Court’s decision on whether to uphold this will be key in settling the issue.
Q: Can public high school officials dictate what we publish on school-affiliated social media accounts, like the Instagram page for our student newspaper?
A: The answer to this largely depends on where you are and whether the social media account has been established as a public forum. To date, 14 states have adopted laws — popularly known as “New Voices” laws — that provide specific free speech protection for student media. Most of those laws define “student media” broadly and would likely protect students from censorship of social media accounts that are tied to their journalism programs.
In the absence of a state law, courts have ruled that student media that have established themselves as a “public forum” — either by policy or practice — enjoy heightened protection from administrative censorship. The same reasoning should apply to social media accounts. For example, if there is a written district policy that states that students make the content decisions for these accounts, then the account is a public forum and school officials must establish that what is posted is either unlawful (e.g., libelous, obscene, ec.) or that it will materially and substantially disrupt the school day before they can censor it. Alternatively, even if there is no written policy, if students have historically made content decisions without administrative interference, the account has been established as a public forum in practice, and school officials would have to reach the same threshold before censoring. In the absence of either state law or a policy or practice protecting student social media, public school officials likely do have greater authority to censor. Such authority, however, is never unlimited. At a minimum public high school officials will always have to show that their censorship has a reasonable educational justification.
Absent showing that the content is unlawful or seriously disruptive, censorship of social media by public college officials will almost always be prohibited.
Q: Can Twitter or another social media platform ban me from using their services? Does it violate my First Amendment rights?
A: Twitter, Facebook, Instagram, TikTok, and other social media platforms are private companies that can restrict your usage of their services — even kick you off — if you violate the terms and conditions of their site. The First Amendment only restricts the actions of state actors, like government officials at all levels. As private companies, social media sites (and any other privately-owned site) can restrict your speech without abridging the First Amendment.
We saw this play out when Twitter permanently banned President Trump from using its services after it said his tweets violated the company policy against glorification of violence. Nothing in the First Amendment prohibits a private company from coming up with and enforcing its own policies regarding the content on its website, whether they’re enforced against a student journalist or the president of the United States.
Q: Can we post photos we take for the yearbook or newspaper on a social media page?
A: If they are staff-generated photos and not photos taken by a private contractor, yes. A private photo studio will have contractual limits on how its photos can be used, and typically (without a substantial extra charge) they are licensed for one-time-only use in a print publication. Make sure your student photographers understand at the start of the school term how their photos are to be used. When there is no salary or employment contract, the copyright stays with the photographer, and the photographer has the right to object if their work is used in a way that goes beyond their consent. It’s a good idea to have your staff and any contributors sign a copyright agreement at the beginning of the year before they submit anything to be published. SPLC has a model copyright agreement you can use.
Q: Are school officials allowed to search for and look at my personal (non-school-affiliated) social media accounts without my permission?
A: Yes. Once you post something online it’s pretty much fair game for anyone (school officials, current or potential employers, law enforcement officials) to dig up and review in whatever way your social media platform’s privacy settings allow. No search warrants or other special permission is required. Of course, simply looking at your social media postings is one thing (allowed); punishing you for that content is a whole other (big and complicated) can of worms that courts and lawmakers continue to struggle with.
Q: We compiled a collage of screenshots from student’s Instagram photos. The accounts are public. Is it legal for us to publish that collage?
A: Assuming the photos are individually recognizable — that is, the subjects can be seen, for example, and you’ve used enough of the original photo that people would recognize it as the individual work it once was, you will need explicit permission from each of the copyright owners. In the case of candid photos, the copyright owner is generally the person who took the photo.