Social Media Speech

by Lata Nott, Executive Director, First Amendment Center

March 14, 2017 

Most college students today have grown up surrounded by social media. An enormous amount of their “speech” takes place on digital platforms such as Facebook, Twitter, and Instagram Naturally, the prevalence of social media on college campuses  presents the following question: at a public university or college, do officials and administrators have the right to discipline, punish, or expel students based on the content of their social media posts?

This is still a relatively new area of the law.  There haven’t been many cases where courts have weighed in on the issue, and the scant amount of case law that exists is contradictory.

In Yeasin v. University of Kansas, a 2015 case, the University of Kansas expelled student Navid Yeasin for tweeting derogatory and offensive statements about his ex-girlfriend.  The university based its expulsion on its Student Conduct Code, which states that students can be punished for policy violations that occur “while on university premises or at university sponsored or supervised events.” When the case reached the Kansas Court of Appeals, the appellate court found that Yeasin should not have been expelled because there was no evidence that his offensive, policy-violating conduct occurred on the university premises.  However, as the Student Press Law Center has noted, “While the ruling vindicated Yeasin’s right to be free from punishment for his off-campus speech, it was based more on an interpretation of the college’s own rules than the First Amendment, so the case’s value as precedent for future constitutional challenges is uncertain.”

Things turned out less well for the student-plaintiff in Keefe v. Adams.  In that case, officials at Central Lakes College removed Keefe from the school’s nursing program, citing the lack of professionalism revealed in his Facebook posts.  Keefe’s posts included the following:

“Doesn’t anyone know or have heard of mechanical pencils. I’m going to take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to [sic] long. I might need some anger management.”

In another post, Keefe called a classmate a “stupid bitch.” After two classmates complained to an instructor, administrators got involved and removed Keefe from the Associate Degree Program.  Keefe sued, contending that the officials violated his First Amendment rights for disciplining him for off-campus, online speech that did not fall into any unprotected speech category, such as obscenity.  Keefe lost on the federal district court level, appealed, and then lost again when his case was heard by the 8th U.S. Circuit Court of Appeals.  

The 8th Circuit panel noted that “[m]any courts have upheld enforcement of academic requirements of professionalism and fitness, particularly for a program training licensed medical professionals.” The appeals court also noted that the professionalism standards were viewpoint neutral.

One aspect of the court’s ruling is potentially troubling from a free speech perspective. The 8th Circuit relied in part on the U.S. Supreme Court’s decision in Hazelwood Sch. Dist. v. Kuhlmeier (1988), a case involving the censorship of a high school newspaper. In Hazelwood, the Supreme Court reasoned that school officials could censor school-sponsored student speech if they had a legitimate educational reason for doing so.  

The 8th Circuit’s application of this rule to Keefe is is concerning for two reasons. First, Hazelwood applied to high-school students, not college students.The Supreme Court has made it clear that although high school students have some free-expression rights, their rights are more limited than those of adults.  In Hazelwood, the court found that the rights of high school students, “are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.” One might logically assume that this standard does not apply to college students, for one simple reason:  college students are adults.  Nevertheless, the 8th Circuit also wrote that “a college or university may have an even stronger interest in the content of its curriculum and imposing academic discipline than did the high school at issue in Hazelwood.”

One would presume that college and university students have greater free-speech protections than high school students.  In his law review article discussing the attempts of colleges to control the social media speech of student athletes, Frank LoMonte observes that, “By contrast with its measured apportionment of First Amendment liberties at the K-12 level, the Court has spoken expansively of the importance of the free exchange even of challenging and unpopular ideas in the ‘marketplace’ of a college campus. In Hazelwood, the Court broadly hinted that the interests of the speaker and the institution might balance out differently at the college level.”  The reasoning of Keefe v. Adams appears to ignore this altogether.  

Another troubling aspect of the 8th Circuit’s ruling is that Hazelwood involved school-sponsored student speech; the principal wanted to censor certain articles from being published in the official school newspaper. This is an odd case to apply to a situation involving a college student’s Facebook posts.  Keep in mind that the law regarding for online speech for high school students is, itself, a bit of a mess.  The Supreme Court established in Morse v. Frederick that high school teachers could discipline student-speech at school sponsored events.  It established in Hazelwood that this also applies to school-sponsored speech, like the contents of a school newspaper or yearbook.  But the Supreme Court has never issued a decision about whether a school can punish a high school student’s off-campus, unsponsored speech.  The Circuit Courts are currently split on this issue.  

It therefore seems strange that the 8th Circuit would rely on Hazelwood to establish the college’s ability to discipline Keefe for his speech.  Keefe’s Facebook posts’ were not school-sponsored.  He wasn’t posting on a school blog, or a group facebook page, but his own personal Facebook page.  

In her dissent, Judge Jane Kelly disagreed with the approach the other judge’s adopted in Keefe, noting that Keefe’s posts “cannot be reasonably attributed to the school,” and therefore the Hazelwood “reasonably related to pedagogical concerns” test should not have been applied.  Furthermore, she pointed out that while, “A number of long-standing First Amendment doctrines leave public schools and universities ample room to discipline students based on what they say on campus or in academic assignments…these traditional exceptions do not apply to off-campus speech unrelated to academic assignments, like Keefe’s Facebook posts.”

This is an area of the law that will need to be watched carefully, to see how it develops.