November 24, 2021
Nearly every student in America is engaging with some form of social media on a daily basis. And, as many of us can attest—not everyone does so responsibly. As social media has evolved over the years, becoming nearly ever‑present, educational institutions have increasingly exercised authority over students’ social media expression. While this is often appropriate, it is important to carefully navigate these scenarios and to remember the First Amendment right students enjoy while attending a public educational institution.
FIRST AMENDMENT IN PUBLIC SCHOOLS
Generally speaking, the First Amendment only regulates speech restrictions imposed by governmental entities. U.S. Supreme Court cases have made clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Morse v. Frederick, 551 U.S. 393, 396 (2007). To that end, student expression may only be suppressed where university officials conclude that the expression will “materially and substantially disrupt the work and discipline of the school.” Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503, 513 (1969).
“ON-CAMPUS” VERSUS “OFF-CAMPUS”
However, school officials may only exercise regulatory authority over student speech that occurs in the school context. Morse, 551 U.S. 393 at 404‑05. As noted by the Third Circuit, “The school context. . . is not limited solely to the physical space of a school,” and focuses instead “on the extent to which schools control or sponsor the forum or the speech.” B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170, 179 (3rd Dist. 2020). Because of this, the first step in analyzing a student’s First Amendment right is to determine whether the speech at issue represents “on‑campus” or “off‑campus” speech. Id. at 178. The court recognized, specifically, that while this task is difficult, “the difficulty has only increased after the digital revolution.” Id. at 179.
For example, in B.L., the plaintiff was suspended from her high school cheerleading team because she posted a Snapchat photo of herself with the caption: “f[***] cheer.” Id. at 175. To determine whether the speech constituted on‑campus or off‑campus expression, the court examined whether the speech was provided at a “school‑sponsored” event, whether it appeared school‑sanctioned, and whether the online platform was school‑operated. Id. at 180. The court concluded that the speech was considered “off‑campus” because the plaintiff had created the “Snap” while away from the school, over the weekend, and without school resources, and because Snapchat is a public, as opposed to a school‑affiliated, social media platform. Id. at 180‑81. Because the speech was considered “off‑campus,” the school violated plaintiff’s First Amendment rights by disciplining her.
INSIGHTS FOR GF CLIENTS
If you are a public employer, including a public school or university, make sure to proceed with caution and consult with legal counsel before taking action against any individual (student, employee, third party) based on the content of the individual’s social media expression.
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.