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October 22, 2020 Top Story

Schools Cannot Regulate Student Speech Made Off Campus

Circuit court ruling extends First Amendment protections to off-campus speech

By Leslie R. Snider

At least one circuit court has held that public schools cannot regulate student speech made outside of school-owned or -operated property. The decision in B.L. v. Mahanoy Area School District conflicts with prior application of U.S. Supreme Court precedent on the issue and creates a split with other circuits. However, ABA Section of Litigation leaders categorize the decision as progressive and long overdue, and say that other circuits ought to take notice.

The student was disciplined for posting a photo on her personal social media account with her middle finger raised

The student was disciplined for posting a photo on her personal social media account with her middle finger raised

Credit: Khosrork | iStockphoto by Getty Images

Social Media Post Leads to Lawsuit

After a student failed to make her high school’s varsity cheerleading team, she posted a picture of herself to Snapchat captioned “[f]*** school f*** softball f*** cheer f*** everything” with her middle finder raised. The student was disciplined for allegedly violating school and team policies regarding banned use of foul language and tarnishing of the image of the school.

The student filed a lawsuit against the school district in the U.S. District Court for the Middle District of Pennsylvania raising three claims under 42 U.S.C. § 1983. The district court granted summary judgment in favor of the student, ruling that the student’s post was “off-campus speech,” “had not caused any actual or foreseeable substantial disruption of the school environment,” and thus was not subject to discipline. As a result, the student’s speech was protected by the First Amendment, and the school was precluded from punishing the student based on that speech.

Third Circuit Creates Split

The Third Circuit Court of Appeals affirmed, recognizing that its ruling conflicted with prior applications of controlling U.S. Supreme Court precedent. Specifically, in Tinker v. Des Moines Independent Community School Dist., the Court held that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” unless the speech would cause “material” and “substantial interference” with discipline and operation of the school.

The Third Circuit diverged from other circuits’ applications of Tinker. For example, in Wisniewski ex rel. Wisniewski v. Board of Education, a student was disciplined for posting a threatening instant messenger icon, and the Second Circuit held it was appropriate to apply Tinker because “the IM icon, once made known to the teacher and other school officials, would foreseeably create a risk of substantial disruption within the school environment.” And in Kowalski v. Berkeley County Schools, a student created a MySpace page harassing a fellow student, and the Fourth Circuit held that the speech “had a sufficient nexus with the school” justifying Tinker’s application.

As support for its decision in B.L., the Third Circuit relied on J.S. ex rel. Snyder v. Blue Mountain Sch. Dist. and Layshock ex rel. Layshock v. Hermitage Sch. Dist., a pair of 2011 en banc Third Circuit decisions. These holdings provide that “a student’s online speech should not be considered on-campus simply because it involves the school, mentions teachers or administrators, is shared with or accessible to students, or reaches the school environment.” Thus, the Third Circuit concluded the student’s Snapchat post incorporated too few “points of contact” with the school because the student “created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school.” As a result, the student’s speech was protected.

Setting the New Normal

“Many schools argue they have the long arm authority to regulate off-campus speech, even to the extent to when students are on their own time and devices,” explains Dr. Jonathan W. Peters, Athens, GA, chair of the First Amendment Subcommittee of the ABA Section of Litigation’s Civil Rights Litigation Committee. “Students in out-of-school settings are not second-class citizens and should enjoy the same First Amendment rights as those not in school,” he opines. “The Third Circuit now strikes an appropriate balance between physicality and restoration of First Amendment protections,” adds Peters.

“A school’s ability to control speech should not be extended to a student’s every waking hour, meaning they would not be afforded the same speech protections as every other American,” agrees Frank D. LoMonte, Gainesville, FL, Professor and Director of The Brechner Center for Freedom of Information at the University of Florida College of Journalism and Communications, who submitted an amicus brief in B.L., and former leader in the ABA’s Forum on Communications Law.

From a civic perspective, “the world needs to start paying attention to individual freedoms and how lack of access to such freedoms affects the world we live in,” states James D. Abrams, Columbus, OH, member of the Section’s Access to Justice Committee. “Vulgar language may be offensive to some, but could be part of another’s everyday vernacular,” Abrams contends. “Having the option to bypass social media posts containing vulgar language does not rise to the same level of harm as being compelled to hear vulgar language when subjected to the confines of a classroom,” asserts Abrams. In the increasingly digital age, “the Third Circuit now provides significant direction into analyzing these nuances,” concludes Abrams.


Leslie R. Snider is a contributing editor for Litigation News.

Hashtags: #StudentSpeech #FirstAmendmentRights

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