Supreme Court of the United States Rules on Free Speech Case Affirming Tinker Standard
Today the U.S. Supreme Court ruled 8-1 to strike down a public school’s discipline of a student who engaged in her freedom of speech right to post to her list of friends on Snapchat 2 messages that used vulgar language and gestures to criticize her school and her school’s cheerleading team (case accessible here: https://www.supremecourt.gov/opinions/20pdf/20- 255_g3bi.pdf). She posted the messages while off-campus and outside of school hours. The fist message read: “Fuck school fuck softball fuck cheer fuck everything”. The second message included an upside-down smiley face emoji and the caption: “Love how me and another student got told we need a year of jv before we make varsity but that doesn’t matter to anyone else”.
The Court reaffirmed that Tinker’s (armbands that students wore to protest war) admonition that students “do not shed their constitutional rights to freedom of speech or expression at the school gate” also extends in special circumstances to the regulation of off-campus out of school student speech. The Court affirmed that schools have a special interest in regulating speech which materially disrupts classwork or involves substantial disorder or invasion of the rights of others, noting that these special characteristics call for special leeway when schools regulate speech that occurs under its supervision.
The Court, in refusing to adopt the 3rd District Court of Appeals reasoning that all student off-campus out of school speech is beyond a school’s regulatory authority, noted that these special characteristics give schools additional license to regulate student speech that takes place off- campus. The Court stated, “the school’s regulatory interests remain significant in some off-campus circumstances”. The litigants identified several types of off-campus behavior that may call for school regulation: 1. Serious or severe bullying or harassment targeting particular individuals; 2. Threats aimed at teachers or other students; 3. Failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and 4. Breaches of school security devices, including materials maintained within school computers.
The Court stopped short of adopting a rule defining the extent of a school’s authority to regulate a student’s off-campus, out of school speech, reasoning:
Particularly given the advent of computer-based learning, we hesitate to determine which of many school-related off-campus activities belong on such a list. Neither do now know how such a list might vary, depending upon a student’s age, the nature of the school’s off-campus activity, or the impact upon the school itself.
Instead of a clear rule, the Court identified 3 features of off-campus speech which serve to diminish a school’s authority to discipline a student’s off-campus, out of school speech. First, the Court noted that in relation to off-campus speech, a school rarely stands in loco parentis; student off-campus speech generally falls within the zone of parental responsibility and not school-related responsibility.
Second, when a school’s regulation of off-campus speech is in effect 24/7, the Court reasoned that courts must be more skeptical of a school’s efforts to regulate off-campus speech, as students would not be able to engage in off-campus speech without such control. Third, the Court noted that “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off-campus. America’s public schools are the nurseries of democracy.”, referencing the oft-repeated phrase: “I disapprove of what you say, but I will defend to the death your right to say it”. The Court concludes it reasoning: “Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished”. In reviewing the student’s speech, the Court noted that her speech was the kind of pure speech that if she were an adult would be “strongly” protected by the First Amendment. The Court reasoned that her off-campus, out of school speech did not identify her school or target any member of the school community with vulgar or abusive language and it was limited to an audience of her friends.
The Court identified that a school has an interest in teaching good manners and prohibiting students from using vulgar language to criticize a school team or its coaches. However, the Court concluded that this interest is weakened considerably by the fact that she spoke out of school on her own time---outside the purview of a school’s in loco parentis authority. The Court also noted no evidence was presented that the school engaged in any effort to prevent students from using vulgarity outside the classroom.
The Court next concluded that no evidence existed that the student’s speech created a substantial disruption of a school activity or threatened harm to the rights of others, reasoning:
As we said in Tinker: ‘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.
Lastly, the Court noted that some evidence was presented that indirectly expressed a concern for team morale—that negativity could impact students in the school. However, no evidence was presented to suggest any serious decline in team morale to that would create a substantial disruption or interference with a school’s efforts to maintain team cohesion. Citing Tinker, the Court reasoned: “simple undifferentiated fear or apprehension…is not enough to overcome the right to freedom of expression.”
Where does this leave us?
As you carefully review your policies and practices regarding how, where and under what circumstances you discipline students for out of school, off-campus speech, keep in mind the following guidance. Which if any policies are in effect 24/7, 365? If any such policies exist, do they clearly state expectations concerning out of school off-campus speech? These policies will be heavily scrutinized by a reviewing court and unless we can establish that a student’s out of school, off-campus speech has caused a substantial disruption in a school activity or threatens harm to the specific rights of others, to discipline a student for such speech will expose your district to potential suit and possible liability for damages, including attorneys’ fees for the person suing you.
Do your policies clearly state that out of school, off-campus speech that threatens staff or students is a violation of school rules? Do your policies clearly prohibit out of school, off-campus speech which bullies or harasses students or staff? Do your policies clearly state the rules and behavioral expectations concerning the use of school district computers/network access when students use the same off-campus and out of school? Do you policies clearly state prohibit unauthorize use or access to school networks or misuse of the same?
We are happy to help you review your policies and practices so please reach out to us if the need arises.