Can Public School Students Constitutionally Be Punished for Their Off-Campus Comments on Social-Networking Sites or Blogs?

The advent of social-networking sites and blogs has raised many interesting legal issues, one of which pertains to school-imposed restrictions on student speech.  It’s long been clear, based on Supreme Court precedent, that public-school administrators can constitutionally punish substantially disruptive student speech if it occurs within their schools, or during official off-campus extracurricular activities.  But now, a new question is being asked:  Can students be punished by school officials for posting certain school-related messages—such as Facebook postings, or “tweets” on Twitter—while they are off campus, and using their own computers?  Or do students have a First Amendment right to post such messages under those circumstances?

Why Avery Doninger Wants to Take Her Case All the Way to the U.S. Supreme Court

One student who was punished for conveying a school-related message to others via her home computer—Avery Doninger, then a Connecticut high-schooler—is now asking the U.S. Supreme Court to take her case.

After her high school’s annual battle-of-the-bands contest was cancelled, Avery complained about the cancellation on her publicly accessible blog, during after-school hours, while she was at home, typing on her home computer.  In her post, Avery called the school decisionmakers who had called off the contest “douchebags.”

When the school administrators learned of the blog post, they prevented Avery from running for a school office, as she had planned to do.  Then, when she sought to protest the decision to ban her from running for office, by wearing a “Team Avery” T-shirt at a school assembly, they forbade her from doing so.

Avery, with the support of her parents, then sued the relevant school officials for damages for allegedly violating her First Amendment rights.  However, the U.S. Court of Appeals for the Second Circuit held, in Doninger v. Niehoff, that those rights, in the school context, were not yet clearly-established enough to provide valid grounds for her suit.

Meanwhile, two somewhat similar school-speech cases—Snyder v. Blue Mountain School Dist., and Layshock v. Hermitage School Dist.—each led to en banc review by the U.S. Court of Appeals for the Third Circuit.  Each case involved a student’s suspension for creating, as a joke, a fake MySpace page that included a photo of the school’s principal, and rude but obviously fictitious claims about the principal.

Unlike in the Second Circuit decision, where student Avery Doninger lost, in the Third Circuit en banc found for the students in both cases.  In her recent petition for U.S. Supreme Court review, Doninger argues—and she may well be right—that these contrasting outcomes constitute a “Circuit split” regarding the extent of students’ modern-day First Amendment rights, thus fulfilling one important criterion for potential Supreme Court review.

Often, the Supreme Court will let an issue “percolate,” awaiting additional lower-court decisions on a given issue before choosing to grant review in a case raising that issue.  But the argument for letting cases percolate is arguably at its weakest when First Amendment issues are implicated, as they are here.  That’s because First Amendment doctrine recognizes that when the law is unclear, that very lack of clarity creates a “chilling effect,” by making potential speakers unsure as to how far their First Amendment rights actually extend, and thus, fearful to risk exceeding free-speech limits.  Thus, it would be great to see the Court take up this issue earlier, rather than later.

Of course, it seems unlikely that America’s middle- and high-school students are keeping up with the outcomes of federal appellate cases, but schools and their attorneys likely are.  And schools’ one-sided views may well be communicated to parents—who may then warn their kids to keep their heads down, and never to speak out, even in circumstances where speaking out is their right.

The Core Supreme Court Precedent on Public School Students’ Free Speech

The Supreme Court made clear in 1969, in Tinker v. Des Moines Indep. Cmty. Sch. Dist. that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  However, in the Tinker decision, the Court also held that students’ free speech rights, while they are in school, may be curtailed due to the “special characteristics of the school environment.”  The key test, according to the Court, is whether student expression would “materially and substantially disrupt the work and discipline of the school.”

The Tinker case ought to help Avery Doninger, if her own case does indeed go to the Supreme Court.  As the first quotation above shows, the Court in Tinker plainly assumed that public school students enjoy full First Amendment rights when they are outside the school.  Those are the rights that, according to the Court, are not “shed . . . at the schoolhouse gate.”

One could thus argue that Tinker has already, in effect, resolved the social-networking-site issue, by setting forth a simple, bright-line rule:  When outside the school, and not involved in a school-related activity, a student has full First Amendment rights—period, full stop.

(There are exceptions to that rule, however.  Sexual material may be deemed “obscene as to minors” and therefore withheld from them, for example.  But those exceptions aren’t directly relevant here, and the recent Supreme Court “violent” video game ruling was a strong win for minors’ free speech rights, as I discussed in a prior column on Justia’s Verdict.)

Would such a rule be workable?  In answering this question, it’s worth noting that the school is definitely not the only authority here.  Students still are subject to parental supervision and possible punishment.  And nothing prevents school officials from telling parents what their kids are doing on social-networking sites when the officials learn of it.

Still—though Tinker is, in one sense, a terrific precedent for Doninger—a strong caveat is called for, too.  Invoking the Tinker case too heavily or too frequently could risk making Doninger’s own case look comparatively trivial.

In Tinker, what was at issue was a peaceful protest in which students wore armbands to protest the Vietnam War.  That’s a far cry from a tempest-in-a-teapot about a “battle of the bands”—and perhaps also a sad commentary on how today’s students differ from their predecessors.

The Approach Evidenced by the More Recent Morse v. Frederick Case May Cut Against Claims Like Doninger’s

Even if the schoolhouse-gate language from Tinker is followed in social-networking cases, it may also be stretched—as it was in a Supreme Court case that is much more recent than Tinker.  That case is Morse v. Frederick, decided in 2007.

There, the student at issue, Joseph Frederick, held up a banner reading “Bong Hits 4 Jesus,” which school officials found objectionable, during a school field trip that involved students’ simply standing on a public street to witness the passing of the Olympic torch.

Despite his standing on a public street, witnessing something that the school had played no role in creating, Frederick was still deemed by the Supreme Court to be effectively in school when he held up his banner.

The real issue, in that case, seemed to me to be more school embarrassment—for TV cameras were capturing the passing of the torch, and the watching crowd—than any true material and substantial disruption of school activities that might have genuinely fulfilled the Tinker test.

Still, even if the Frederick ruling was a stretch, as I think it was, can anyone seriously maintain that a student who is at home, is actually effectively “at school” simply because she discusses school issues on the Internet?  A computer is not a Star Trek-style transporter, after all.

Granted, unwary students might get in trouble for, say, thoughtlessly using school wireless to text about classmates while sitting in their cars in the parking lot after school.  But more generally, it seems almost Orwellian to say that a student who is, in fact, sitting at home in her room is also somehow in school.

In the end, the argument to be made here is really that new law needs to be made, because physical school boundaries now matter less than they once did, and because the Tinker Court, writing in 1969, did not foresee, and could not have foreseen, the advent of the Internet.

The interesting question now—if the Court takes Doninger’s case, or one like it—is whether the current Court is interested in making new law, and especially new law that reaches into Americans’ homes, and affects their children.

Student-Versus-Administrator Clashes, Compared With Student-Versus-Student Clashes

One final interesting aspect of the Second and Third Circuit cases discussed above, is that they are all student-versus-administrator conflicts.  Avery Doninger called administrators “douchebags,” and the students in the Third Circuit cases created fake MySpace pages featuring their principals.

These aren’t cases, for instance, in which a student is bullying another student via a social networking site; a school administrator intervenes; and the bullying student invokes the First Amendment.  Those cases have much higher stakes—with the fear of a student’s possible suicide a very real one.  And they raise, in my view, much harder legal questions about when First Amendment rights stop, and not only school infractions, but also torts and crimes, begin.

Keeping this distinction in mind shows how relatively mild the costs of allowing students to fully exercise their First Amendment rights under circumstances like those of the Second Circuit and Third Circuit cases would have been.  School administrators ought to be thick-skinned enough that they will not be unduly disturbed by plainly fake profiles of themselves on MySpace, or by being called “douchebags” on a student’s blog.

Rather than cracking down in instances like these, administrators should respond by providing a school-wide lecture on where the First Amendment starts and stops.  It might be one of the most valuable lectures the students will ever hear.

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