Leslie A. Farber
Students, Social Media and Free Speech
Social media sites like Facebook, Twitter, SnapChat and Instagram give middle and high school students platforms on which they can express themselves without supervision. At the same time, school administrators and educators are tasked with maintaining a healthy and respectful learning environment free from harassment.
Exactly when and how schools should police social media posts by students is an ongoing challenge. Do schools have the right to censor or punish students for what they say online outside of school grounds? And would their actions violate students’ first amendment right to free speech? Such recurring questions have taken on an even greater sense of urgency as COVID-19 has forced many schools to operate online.
Although the issue of student social media use in school has been somewhat curtailed by clearer school policies, administrators continue to struggle with how to address off-campus online student speech that would otherwise be prohibited on school grounds.
The key U.S. Supreme Court case on school censorship, Tinker v. Des Moines Independent Community School District, dates back to 1969. A group of students had been suspended for protesting the Vietnam War by wearing black armbands to school. The justices ruled in their favor, establishing one of the guiding principles in the cases that would follow: the rights of students to speak out so long as their words did not constitute a “material disruption” of a school's educational activities. However, subsequent court decisions have not always clarified what kinds of speech – either in school newspapers, off-campus publications or any other venues – constitute a "material disruption."
A recent federal case illustrates the ongoing controversy around the issue. In the case of B.L. v. Mahanoy Area School District, a high school cheerleader was suspended from her team for comments she made on social media. The student sent a message on Snapchat to about 250 friends that included an image of the student and a friend with their middle fingers raised, along with text expressing a similar sentiment. Another student took a screenshot and showed it to her mother, who was a coach.
The school suspended the student from cheerleading for a year as punishment for her out-of-school speech. The student subsequently sued the school district and won a decisive victory in the United States Court of Appeals for the Third Circuit in Philadelphia. The court ruled that the school violated her First Amendment rights when it punished her for speech outside school grounds.
Now the case of Mahanoy Area School District v. B.L, is heading to the Supreme Court, which will consider whether to hear it. The Third Circuit’s ruling is in tension with decisions from several other courts, and such splits often invite Supreme Court review.
In requesting that the justices hear the case, the Mahoney school district said administrators across the country need a definitive ruling from the Supreme Court on their power to discipline students for what they say outside of school. In a brief urging the Supreme Court to hear the school district’s appeal, the Pennsylvania School Boards Association said the Third Circuit’s decision failed to clarify the issue:
“Whether a disruptive or harmful tweet is sent from the school cafeteria or after the student has crossed the street on her walk home, it has the same impact. The Third Circuit’s formalistic rule renders schools powerless whenever a hateful message is launched from off campus.”
Whether on- or off-campus, student speech remains a First Amendment issue. For now, educators need to know that, in general, students have the right to freedom of expression unless it infringes on the rights of others, school safety or interferes with the ability of a school to deliver its educational services. This means that off-campus online expression would be protected in the same way as traditional speech.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.