The First Amendment includes the right to use technology to create and preserve images, and otherwise collect information, of newsworthy events. This issue has arisen in numerous contexts, including the right to record the police performing police-work, and we have filed several amicus briefs that have helped firmly establish that right in the law.
Consistent with this, we joined a letter protesting the actions of officials at a high school in Georgia who suspended a 15-year old student for posting a photograph of the school's crowded hallways to Twitter. The photograph, of the school's second day back in operation, illustrated what the student perceived to be the serious public health danger in the school's reopening. The student tweeted a photograph showing crowded hallways on the first day of school, which was widely circulated on social media. The student was initially suspended for five days, but the suspension was revoked after two days and purportedly removed from her record. According to news reports, at least one other student was also suspended and then reinstated. The school also reportedly warned students over the intercom system that “‘there will be consequences for anyone who sends things out' that shows the school in a negative light."
As the letter acknowledges, students have robust First Amendment rights to both make and distribute photographs of their school:
In its landmark decision, the U.S. Supreme Court made clear that students in school have important First Amendment rights that protect their ability to talk about and share information with others, particularly about matters of public concern. “Students in school, as well as out of school,” the Court said, “are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect....” , 393 U.S. 503, 511 (1969).
While we understand that emotions around school reopening decisions are charged and that you have faced significant criticism for decisions outside of your control, students, teachers and staff nevertheless have the right to speak accurately and lawfully about their school day, even when that speech may be unflattering to the school. Instead of addressing these concerns, NPHS has sought to impose harsh penalties against those who speak out and chill the speech of others who may have similar concerns. Unconstitutionally prohibiting students from speaking about the conditions of the school does not change the conditions of the school or the concerns they have; it only fosters mistrust and fear.
We acknowledge that in some situations, there may be countervailing privacy concerns that might justify restrictions on both creating and distributing images of students in school. This privacy concern is acknowledged in the school's student rules, though the particular rule, requiring the permission of an administrator before using any visual recording device is insufficiently tailored to that interest.
In this situation, however, the student's right to create and publish the image prevails. The image itself is mostly of students' backs, with only a few faces visible. The privacy invasiveness appears minimal in light of the high newsworthiness.