Freedom of Speech in the Social Media Age
By: Kristin Hoffman
The First Amendment protects our fundamental right to the freedom of speech. However, freedom of speech is not absolute and has limitations, student speech especially. The case law surrounding this issue points to an increasing trend of schools restricting student speech. In the social media age, it has come under question whether school districts can regulate Internet speech that takes place within a child’s home.
The standard for regulating student speech was set forth during the Vietnam War when a school prohibited the wearing of armbands that students planned to wear in silent protest of the war. Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969). The court held that students “do not shed all rights at the schoolhouse gate” but are subject to some control by schools. Id. The court set forth a standard in which schools can exercise control over student speech only if school officials can reasonably conclude that the speech will “materially and substantially disrupt the work and discipline of the school.” Id. In this case, the school could not prohibit students from wearing the armbands because the students were engaging in silent and passive speech expressing a political opinion. Id.
The Tinker standard has been extended to limit speech that takes place outside of school property. Morse v. Frederick, 551 U.S. 593 (2007). In this case, a student was suspended from school for unfurling a banner that said “bong hits for Jesus” across the street from the school at a school sponsored event. Id. The court ruled that the speech could be limited because even though it occurred outside of school property, it was plainly visible, was directed at the school, and promoted drug use. Id.
The courts have allowed schools to limit student speech in social media cases as well. In one such case, a student created a fake MySpace account for the school’s principal. J.S. ex rel. Snyder v. Blue Mtn. Sch. Dist. 593 F.3d 286 (2010). The profile used a picture of the principal taken from the school district’s website and alleged that the principal was a pedophile and a sex addict. Id. The court ruled that school authorities could reasonably foresee substantial disruption to be caused by the profile and as such, the speech could not be protected. Id.
Schools have also been allowed to limit student speech on social media outside of schools in situations of harassment of other students. Kowalski v. Berkeley Co., 652 F.3d 565 (4th Cir 2011). In this case a student used her home computer to create a website ridiculing another student. The school was allowed to discipline this speech despite the fact it took place outside of the school because schools have a responsibility to protect and provide a safe environment free from harassment and bullying. Id.
However, there are cases in which the courts have ruled that student speech outside of school on social media cannot be disciplined or regulated. Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (2011). In Layshock, a student created a MySpace account from a computer in the home of his grandmother. Id. The profile alleged he used drugs, was a drunk, and made fun of his large stature. Several other accounts were created in response to this account. Id. The school disciplined the student speech, and Layshock brought suit alleging the district had infringed upon his First Amendment rights. Id. The court said that Tinker’s schoolhouse gate is not constructed of walls and bricks, recognizing that their control can reach outside of the physical building, but this concept does not give schools limitless reach. Id. The disruption, parody profiles, did not meet the standard presented in Tinker. Id. Ruling in favor of the District in this case would create a dangerous precedent to allow schools to control a child’s conduct within their own home. Id.
A Pennsylvania Supreme Court case, J.S. v Bethlehem Area Sch. Dist., allowed the school’s discipline on student speech conducted from a computer in his grandmother’s home. 569 Pa. 638 (2001). Here, the court could discipline the student’s online speech because the profile included threatening statements regarding solicitation of a hit man to kill the math teacher and the disruption was deemed substantial because the profile caused her to take a leave of absence resulting in the use of three substitute teachers. Id.
Ultimately, the answer to the question of whether schools can validly regulate student speech when it takes place on social media outside of the school is not clear. The courts recognize that a dangerous precedent could be set by allowing schools to regulate student speech at home, but have found that schools do have some interest in regulating speech if a substantial disruption will be caused of it. While the platform of MySpace has become obsolete, the issue has grown with social media. The governing laws will continue to grow and change as social media has over the past few years.
