The following is a guest post by Will Creeley and Nico Perrino of the Foundation for Individual Rights in Education (FIRE). Creeley is FIRE's Director of Legal and Public Advocacy and Perrino is the Communications & Media Relations Coordinator.
Attention, high school and college students: Your online speech is not nearly as private as you think. And no, we're not talking about the National Security Agency. The threat to student speech comes from a far more local and immediate source: the prying eyes of school administrators apparently unaware of their students' rights. All too often, students face unwarranted punishment for online communications.
Just this past May at Cicero-North Syracuse High School in upstate New York, senior Pat Brown was suspended for three days for creating a Twitter hashtag about a school budget controversy. Brown created the "#shitCNSshouldcut" hashtag to suggest ways his school could save money after voters rejected a $144.7 million budget plan, joking that laying off the school's principal or getting rid of the "anime club" might help alleviate budget strains. Unfortunately, the principal wasn't amused; CNN and The Huffington Post reported that Brown was accused of "harassing the principal" and "inciting a social media riot that disrupted the learning environment."
Also this past May, Heights High School (Wichita, Kansas) senior class president Wesley Teague was suspended and barred from attending graduation after posting a tweet that the school deemed offensive to HSS's student athletes. Teague wrote that "‘Heights U' is equivalent to WSU's football team," referring to the school's athletic program and nearby Wichita State University, which eliminated its football program in 1986. Teague was scheduled to give the commencement speech at graduation, but the school sent Teague and his parents a letter stating that Teague's initial tweet and a few subsequent tweets "acted to incite a disturbance" within school and "aggressively [disrespected] many athletes."
Depressingly, colleges aren't much better at respecting student speech rights online.
Last December, a student at Central Lakes College in Brainerd, Minnesota was expelled a semester before his graduation for comments he posted on his private Facebook page. Craig Keefe, who was studying to become a registered nurse, said he wasn't told what was wrong with his Facebook posts or how they violated the college's policies. In a meeting with school officials, Keefe was asked about one of his "disturbing" Facebook posts that used the phrase "stupid bitch" and another that complained about there "not being enough whiskey for anger management." A few days later he received a letter informing him of his expulsion for "behavior unbecoming of the profession and transgression of professional boundaries." Keefe has since filed a lawsuit alleging violations of his due process and free speech rights.
And last October, Montclair State University in New Jersey issued a no-contact order to graduate student Joseph Aziz in response to unflattering comments about another student he posted to a YouTube video that September. The no-contact order included a gag prohibiting him from posting "any social media regarding" the other student. After Aziz later posted comments about the matter to a private Facebook group, he was charged with harassment and disruptive conduct and suspended for the spring semester. Happily, the sanctions were rescinded after our organization, the nonpartisan, nonprofit Foundation for Individual Rights in Education (FIRE), wrote to the university pointing out that the gag order and punishment violated Aziz's First Amendment rights.
These examples make all too clear that administrators think that student expression loses First Amendment protections once it's available online. Thankfully, that's not the case; speech doesn't lose protection just because it's posted on the Internet.
Of course, the First Amendment only applies to government actors—in this context, public high schools and universities. (Private institutions aren't covered by the First Amendment, but some courts have found them to be contractually bound by the promises made to students in handbooks, codes of conduct, and other materials. Often, those promises include free speech.)
There's a difference between the speech rights afforded to public high school and public college students, too. The U.S. Supreme Court has held that public college students enjoy full First Amendment rights. In contrast, the Court has held that public high school administrators may regulate student speech that substantially disrupts school activities; that is "offensively lewd and indecent"; that the public would think bears the school's imprimatur; and that arguably promotes illegal drug use.
So the bottom line is that public college students are just as free as the rest of us to exercise their First Amendment right to express themselves, whether online or off. And even given the more limited speech rights possessed by public high school students, high school administrators can't punish student speech simply because it's posted on Twitter or Facebook. Indeed, recent federal court decisions have suggested sharp limits on administrators' ability to punish high school and grade school students for online speech posted by students outside of school grounds
It's important for students, administrators, and courts alike to recognize that technological advances need not come at the expense of expressive rights. Just because student speech is newly visible and accessible when posted online doesn't mean that administrators have increased power to police and punish it.