Can Off-Campus Student Speech Be a Basis for School Punishment?

As bullying, school shootings, and playground threats become more prevalent and more serious, more and more schools are taking matters into their own hands. Schools in Lawrence, Limestone and Morgan Counties in Alabama are taking action against students based on social media posts; a school in Indiana suspended two girls based on photographs they posted online; schools in Glendale, California have hired a private company (to the tune of $40,000) to monitor students’ social media posts. In Nevada, the school board suspended a young man after he made various threats online.

School monitoring of social media is prevalent, but is it legal? Is it constitutional?

The two Amendments to the Constitution that are most obviously implicated are the First Amendment right to free speech and the Fourth Amendment right against unlawful searches and seizures. (The Fourth Amendment implications are discussed in our next post.) The First Amendment reads as follows (with emphasis added):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution, First Amendment.

First Amendment

Is a school abridging the freedom of speech of its students by punishing students for statements made outside of school? This question is far from simple and it depends on the kinds of statements made outside of school. Some are protected by the First Amendment, but some are not.

The leading case on this topic in the Ninth Circuit is Wynar v. Douglas County Sch. Dist., 728 F.3d 1062, 1064 (9th Cir. 2013). Landon, a sophomore at Douglas High School (about fifteen miles south of Carson City), made several increasingly alarming posts to his friends on MySpace. He made hateful and threatening comments, including about rape and murder of not just broad categories of races but specific people.

Landon’s comments were alarming enough that his classmates shared the comments with their football coach, who in turn went to the principal. The school board met with Landon, and he was suspended for ten days for violating NRS 392.4655(1)(a) for being a habitual discipline problem. At a follow-up hearing, he was expelled for 90 days.

Landon sued the school district alleging that his First Amendment rights were violated. The United States District Court for the District of Nevada granted summary judgment in favor of the school district, and Landon appealed to the Ninth Circuit.

The Ninth Circuit summarized the United States Supreme Court’s First Amendment jurisprudence: “although public school students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, … the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” To reach a decision in Landon’s case, the Ninth Circuit then analyzed the decisions of four U.S. Supreme Court decisions in student speech cases. Those decisions, which all dealt with speech on school grounds are as follows:

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969):

Courtroom Proven.
Client Praised (702) 598-4529

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained.

[Schools may prohibit speech that] might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities [or that collides] with the rights of other students to be secure and to be let alone.

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986):

The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education.

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988):

[E]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007):

[S]chools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.

The Ninth Circuit struggled with applying these rules, which all arose from on-campus speech, to student speech that extended “beyond the schoolyard. It found some support in applying these rules to off-campus speech in decisions by Second, Fourth, and Eighth Circuit courts. Each of these circuits had a requirement that the off-campus speech somehow be related to or affect events at school. The Third and Fifth Circuits decided differently, and were reluctant to apply Supreme Court First Amendment student-speech jurisprudence to expressions made outside of school.

Without articulating a universal rule for off-campus speech, the Ninth Circuit decided, “Under Tinker, schools may restrict speech that ‘might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities’ or that collides ‘with the rights of other students to be secure and to be let alone.’ Such speech is ‘not immunized by the constitutional guarantee of freedom of speech.’Id. at 513, 89 S.Ct. 733. It is an understatement that the specter of a school shooting qualifies under either prong
of Tinker.”

The Ninth Circuit decided that the messages Landon had written on his MySpace page was just such unprotected speech, and concluded that Landon’s First Amendment rights had not been abridged when he was expelled for the statements he made on MySpace.

Should Schools Monitor Students’ Social Media Use?

Zachariah B. Parry is an attorney and founding partner at the law firm H & P and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451.