chevron-down Created with Sketch Beta.
January 04, 2022 HUMAN RIGHTS

The Law of Students' Rights to Online Speech: The Impact of Students' Ability to Openly Discuss Public Issues

by Beth A. Norrow and Sommer Ingram Dean

Students in our nation’s public schools play a critical—but often overlooked and undervalued—role in our democracy. Throughout history, student organizations have played instrumental roles in political and social movements by using their voices to express their views, impact policies, and effect change. During the civil rights movement, for example, student organizations staged sit-ins and marched in protest of segregation laws, challenged racism during Freedom Rides, and advocated for voter rights legislation. Student organizations have consistently used their fearless agitation to provoke, challenge, and move the nation forward. Reliance on social media is not only a critical component of social activism and civic engagement, but it is also important to students’ cultural development and identity formation.

Social media has empowered American teens to generate support for their perspectives and mobilize collective action.

Social media has empowered American teens to generate support for their perspectives and mobilize collective action.


Social Media Empowers Student Activism and Civic Engagement

Over time, student organizations have adapted to and embraced technology to promote their initiatives and expand their reach. In today’s digital age, the internet provides a global audience that permits the transfer of information instantly across borders and time zones. Social media provides a platform for users to express opinions and exchange points of view on any number of issues—from the melancholy, isolation, and frustrations of pandemic-induced quarantine life to the social, political, and ethical perspectives implicated by government policy proposals, presidential debates, and other matters of public concern.

Social media has empowered American teens to not only tell their stories and share their opinions but also generate support for their perspectives and mobilize collective action on a national and even global scale. While social movements of the 1950s used pamphlets, telephone calls, and mass meetings to convey information and coordinate support from the public at large, today’s activism thrives from online engagement and the use of social media to instantaneously disseminate messages to what may be a global audience.

In this modern social reality, constitutional free speech considerations must account for the transformational effect of digital technology. Historically, there are two aspects by which student speech is evaluated: content and location. The content of speech is evaluated to determine if it causes substantial and material disruption in school activities or administration. If the speech causes such disruption, then it is not protected by the First Amendment and is subject to censorship and/or school discipline. The location of speech is evaluated in terms of whether the expression was made on or off a school campus. If speech takes place on campus or while a student is subject to school supervision, then schools are given more governing authority to regulate or punish speech. However, if the speech takes place off campus, then a school’s effort to regulate or punish speech is more limited and, some argue, should generally be left up to parents.

At first blush, these two factors seem like easy ways to categorize speech, yet for decades they have been defined and interpreted differently by various courts across the nation. Social media has only further blurred the lines of interpretation, as it introduces new and unique forms of communication and expression.

Regulating Student Social Media Speech Based on Content

The right to freely debate political and social issues without fear of official sanction is deeply ingrained in First Amendment law. The ability to communicate on social media has immediate relevance for high school students, who are not yet of voting age but have a constitutional right to participate in public discussion of political and social issues, particularly on matters directly impacting them as young members of society. If high school students seek to invoke change in their school or community, they must take action on some level that will raise awareness of salient issues—either through protest, print, or social media posts. Students must indeed disrupt the everyday thought process in order to bring their issues to the forefront. But in doing so, students—fledglings in the civic arena—must figure out how to raise their voice without causing a “substantial and material disruption in school activities or administration,” which the Supreme Court has said will legally subject them to censorship. Courts have worked for years to refine the definition of “material and substantial disruption” with only modest success. If our nearly 250-year-old legal system is still redefining that phrase, how do we expect civic-minded rookies to find that line before they cross it?

In the wake of public school shootings and recent political movements such as Black Lives Matter, there has been a resurgence in student activism based on attitudes and beliefs that may radically clash with those of the students’ teachers, administrators, and even their parents. Students must be afforded the same freedom to express their frustrations as that afforded to adults in the general political community—even if those expressions are unpopular, vulgar, or disturbing. Schools must be safe places for students to explore what makes effective dissent and how to best make their voices heard. If they can’t rely on schools as a safe, educational place to practice civic engagement, we can’t expect them to evolve into adults who meaningfully participate in society.

Regulating the content of student speech on social media is particularly tricky and subject to abuse because digital speech is vulnerable to cultural and contextual misreading. Social media platforms are common sources of controversial, provocative, and resistant speech. Students are no exception to the use of that platform. Student online expression is highly susceptible to misinterpretation—which can lead to overreaching censorship by public school authorities. When someone says, “It’s da bomb!” face to face in school, everyone knows they are just expressing enthusiasm. But, when communicated on social media, there is a real risk of overreaction and punishment of students based on a failure to read cultural cues and signals.

On social media, there exists the possibility of grossly varying interpretations that may result in disruptions that are entirely unintended by the speaker. This lends itself to the obvious problem that a school disciplinary tribunal could have great difficulty assessing and understanding the content of a student’s words and images posted on social media.

Regulating Student Social Media Speech Based on Location

Regulating speech based on location—where the speech was made or received—is profoundly complicated by modern digital technology. The internet is pervasive; it is everywhere and nowhere at the same time. Some speech—such as true threats—do not qualify as constitutionally protected speech, regardless of whether they are communicated inside or outside the schoolhouse gate. But, in general, schools are afforded more liberal authority to censor student expression that is made on the school’s campus than that made off campus.

Courts have long held that when students are within the “schoolhouse gate” or while a student is subject to school supervision, schools have a special interest in regulating student speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others. That is, speech that causes substantial and material disruption on campus or to a school-sponsored activity is not protected by the First Amendment and is subject to school disciplinary action. To be clear, cyber-harassment, cyber-bullying, and “true threats” are serious problems that are not constitutionally protected speech, and public schools do have—and should have—the ability to address these issues. However, the First Amendment prohibits public school officials from censoring student expression made outside the school environment even if it employs objectionable or inappropriate language regarded as incompatible with the school’s official stance based on its own perception of community values.

Student Off-Campus Social Media Posts: Levy v. Mahanoy

Recently, the “cheerleader Snapchat case” brought student speech and social media within the focus of the U.S. Supreme Court in the case Levy v. Mahanoy School District. In Levy, the school administration sought to extend the boundaries of the “schoolhouse gate” by punishing a disgruntled cheerleader for using the words “F_ school F_ softball F_ cheer F_ everything” (along with a cheeky picture of Levy raising the one-finger salute) in a Snapchat post over the weekend while she was off school grounds. The post was not directed to anyone in particular and the receiving audience was limited to a finite group of “friends.” While normally a Snapchat expires after 24 hours (which would have been before school resumed classes on Monday), another student took it upon herself to screenshot Levy’s Snap before it expired and showed it to the cheerleading coach. The coach then showed it to school administrators, who decided to punish Levy. While the school admitted Levy’s Snapchat did not disrupt the learning process or any school activities, the school nonetheless concluded that Levy’s off-campus social media post was punishable because it interfered with the morale and chemistry of the cheerleading squad and violated the viewpoint-based team rules imposed by the school district on cheerleaders. As a result of the Snapchat post, the school suspended Levy from the junior varsity cheerleading squad for the upcoming year.

Public school authorities have never been given the explicit right to police decency by suppressing student speech outside the school environment, but the school punished Levy anyway. Levy was forced to sue the school district, which then appealed a decision favorable to Levy all the way to the U.S. Supreme Court. The Court ruled in favor of Levy and found the school district impermissibly punished her for off-campus speech that did not significantly interfere with or disrupt school activities. The Court explained that such language—as distasteful as it may seem to the school—is still protected by the First Amendment.

Impact of Overreaching Disciplinary Decisions

Once a school oversteps its bounds and wrongfully punishes a student, how do we undo the harm that case caused the student? It is typically impossible as well as impractical for a student to obtain judicial review and meaningful redress prior to being harmed, often irreparably, by a public school’s disciplinary decision. The moment Levy was disciplined for her Snapchat in 2017, she became stigmatized as a disruptor with a formal record of the same. Indeed, the same officials who overzealously handed down Levy’s disciplinary decision also memorialized it in her student record. This is a critical point because if Levy, or any other student in her position, is asked to document on a college application whether they have ever been disciplined, they would have to answer affirmatively. In such instances, it is fair to assume that the student’s disciplinary record will state something along the lines of “violated policy on student conduct” rather than “used a swear word on social media while outside of school, in a non-threatening manner and directed at nobody in particular.” While both may arguably be considered accurate, there is a tremendous difference in how each statement is likely to be received by the uninformed reader.

It took four years to vindicate Levy’s First Amendment rights through the civil litigation process. Can the negative impact on her high school record really be meaningfully undone after such a long process? Indeed, we cannot truly measure the impact on the immediate educational or employment prospects of Levy or any other similarly situated student stigmatized by overreaching school authorities. Neither can we predict the effect that being silenced or punished by school authorities will have on young people’s willingness to engage in tough discourse about matters that affect them. The Levy case may seem low-stakes—after all, no one would argue that her Snap was much-needed political speech. But schools’ responses to these situations send messages to other young people that their voices don’t matter; that they shouldn’t speak up if they don’t have something to say that is agreeable to authorities; and that considerations of propriety will be valued more than valid criticism.

These young people are at a critical point in their formative years, the unique experience of which cannot be recovered by a favorable court decision eventually rendered years down the line. Because judicial redress cannot adequately restore what a school has wrongfully taken away, it is no answer to say that a student punished for off-campus speech can seek correction through the legal process years after the fact. The opportunities lost to the student are irretrievable; they cannot go back and join the cheer squad, take another crack at a high school sports team, recreate the college admissions process, or otherwise redo this important part of their lives. They cannot unlearn the detrimental lesson of the powerful control over the messaging of the non-powerful, even if it is in contravention of the oft-touted marketplace of ideas.

It will simply be too late.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Beth A. Norrow

Associate, Greenberg Traurig, LLP; Chair, Consumer Protection Law Committee, Florida Bar Association

Beth A. Norrow, Esq., is a financial services litigation attorney at Greenberg Traurig, P.A. in West Palm Beach, Florida. She is the current chairperson for the Consumer Protection Law Committee for the Florida Bar Association.

Sommer Ingram Dean

Fred Hartman Distinguished Professor of Journalism, Baylor University; Staff Attorney, Student Press Law Center

Sommer Ingram Dean is the Fred Hartman Distinguished Professor of Journalism at Baylor University. She is also an attorney at the Student Press Law Center, a nonprofit dedicated to promoting, supporting, and defending student press rights.