Survey Shows Support for Students’ Off-Campus, Online Speech

State of the First Amendment 2015

The most pressing question in student speech (K-12) law is “When are school officials allowed to exert authority over students for off-campus, online speech?”

Students often post comments about their principals, teachers and fellow students on social media. Some of this speech is not pleasant and may cross the line into defamation, threats, bullying or harassment. But much of students’ online speech is simply critical of school officials or speech that school officials don’t like for one reason or another.

In the recently released 2015 State of the First Amendment survey, the Newseum Institute asked people to respond to the statement “Students should be allowed to express their opinions about school administration without threat of being punished.”

A commanding majority of 60 percent agreed with this statement, while only 33 percent disagreed (about 6 percent had no opinion or didn’t know). The results diverged even more based on the age of the responders. A whopping 84 percent of those between the ages of 18 and 29 agreed with the statement.

Most people recognize that social media provides a key outlet for individuals to express themselves and that there must be limits to the reaches of school officials’ authority.

In 1969, the U.S. Supreme Court famously proclaimed in Tinker v. Des Moines Independent Community School District that “it can hardly be argued that … students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In Tinker, the court also said that public school officials could only censor student speech if they can reasonably forecast that the student speech will substantially disrupt school activities or invade the rights of others.

But Tinker involved students engaging in political speech by wearing black peace armbands on school grounds. Does Tinker and its substantial disruption standard apply to off-campus, online speech? Many lower courts have said yes, as long as school officials can show that there is a clear connection between the student’s online speech and negative stuff that happens at school.

But it should be clear to all school officials that students do have a right to engage in off-campus, online speech that criticizes school officials. As U.S. Federal District Court Judge Rodney Sippel wrote in the very first published decision on student online speech in 1998, “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker.”

However, this area of law is still unsettled partly because the U.S. Supreme Court has continued to assiduously avoid addressing the issue in different cases.

The court has refused to review decisions by the 2nd, 3rd and 4th Circuits on this question. Such inaction has led to lower courts coming up with their own variations of when the student off-campus, online speech has enough of a connection to the school to give school officials the power to address problems allegedly caused by the speech.

The uncertainly is bad for both school officials and students. School officials often feel hamstrung and uncertain whether their actions are lawful in trying to punish students for off-campus, online speech. Students feel as if their rights are being violated when school officials overexert their authority.

Perhaps in the near future, the legal landscape will become clearer, and students, as well as school officials, will have more guidance.

David L. Hudson Jr. is the ombudsman for the Newseum’s Institute First Amendment Center and the author of “Let the Students Speak: A History of the Fight for Free Speech in American Schools.”

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