Is high school student speech protected on social media?

In the wake of last week’s National Walkout Day, students involved in sanctioned and unsanctioned demonstrations are voicing their opinions on social media. But at what points could those opinions cause problems at schools?

So far, there haven’t been any media reports of schools suspending or disciplining students for comments on social media criticizing administrators. But with another protest scheduled for April 19, the debate over National Walkout Day isn’t going away. And at one Pennsylvania school, a video shot by students protesting at a National Walkout Day detention is nearing 3 million online views.

The basic Supreme Court decisions that draw free-speech lines for public high school and secondary schools students date back more than 30 years – to a time when the commercial Internet, yet alone Snapchat, Facebook and Twitter, didn’t exist. A few recent federal court decisions below the Supreme Court level show divided opinions about what students can say on social media when they aren’t physically at school.

The foundational decisions about public school student speech start with Tinker v. Des Moines Independent Community School District from 1969 and West Virginia v. Barnette from 1943. The Tinker decision famously said that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but it also gave school administrators very broad powers to prevent conduct that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The Barnette decision said students couldn’t be forced to take actions such as an oath or a pledge that conflicted with their religious beliefs.

Two other decisions from the 1980s clarified more actions administrators can take at public schools to restrict student speech if educational or safety concerns became factors. In Bethel School District v. Fraser (1986), the Court said a public high school student couldn’t use sexually explicit language at an assembly, while in Hazelwood v. Kuhlmeier (1988) said that public high school officials could censor a student newspaper if needed.

Generally, all of those decisions dealt with actions taken by students physically on campus or within a school. But in current times, much speech by students happens outside of school. And in some cases, those statements can disrupt school activities.

A recent example was in a case from Pennsylvania about a public-school student punished by his school district for a Facebook post about a bomb threat. In R.L. v. Central York School District (2016), Judge John E. Jones III at the federal Middle District of Pennsylvania said that the York School District’s 23-day suspension of the student with didn’t violate his First Amendment rights.

Judge Jones said the location where the student made the Facebook post wasn’t material. But he agreed with the student’s parents that the school’s handbook overstated its ability to regulate student speech under the Supreme Court’s Tinker decision.

Concerns about off-campus student speech were part of a different 2016 case that the Supreme Court declined to hear. In Bell v. Itawamba County School Board, lower federal courts disagreed about student free speech conducted on social media off-campus. Bell, a Mississippi public high school student, published rap songs and lyrics on Facebook and YouTube that criticized several teachers after other students accused them of sexual harassment.

A three-judge U.S. Fifth Circuit Court of Appeals panel ruled 2-1 against the school district  on the First Amendment claim. But the full Fifth Circuit Court of Appeals reversed the three-judge panel’s ruling, saying that “the almost 50-year-old standard for restricting student speech, [was] based on a reasonable forecast of a substantial disruption” and the school board acted within that standard.

In November 2017, a federal judge in San Francisco dealt with a student speech case in Shen v. Albany Unified School District. A student at Albany High School created an Instagram account and invited other students to follow it. The student created racist and derogatory messages that targeted other students and school personnel. Once more students found out about the account, school officials stepped in after “a cascade of disruptive events” happened at the school. In the end, students who posted on the Instagram account were expelled, while those followed it without posting were suspended.

The question before Judge James Donato was the off-campus location of the Instagram posts. Donato said off-campus social media activity could be considered “school speech.” The students’ Instagram activities were “by students for students” with the intention of disturbing the school campus. Donato cited a 2013 decision from the Ninth Circuit, Wynar v. Douglas County School District, that said schools could punish students who established websites to bully or disparage other students. Judge Donato upheld the school’s actions against five students, but he ruled for four students who were not extensively involved with the account.

But not every federal case has gone against students. In 2015, a federal district court judge in Portland, Oregon, ruled in Burge v. Colton School District that a middle-school student couldn’t be suspended for his social media activities. Braeden Burge ranted on Facebook about a teacher who gave him a C grade. Burge’s mother forced him to delete the posts, which were only available to his Facebook friends. But several weeks later, school officials became aware of them, and he was suspended for three and one-half days. The school claimed it had the power under the Tinker decision to discipline Burge. The Court disagreed, saying the comments were seen by few people and not actively investigated by the school.

The fallout out from the National Walkout Day demonstrations could further test these boundaries, especially at schools where protestors face detention or suspensions for their actions.

One clue might come from a recently lawsuit settled in Minnesota over student off-campus criticism and the Edina High School Young Conservatives Club. School officials shut down the club after some members on social media complained about other students who didn’t stand when “Taps” was played at a Veterans Day assembly. The school didn’t admit wrongdoing in the settlement, but it changed its policies to make it clear students couldn’t be disciplined for free speech that didn’t conflict with its “basic educational mission.”

That harkens back to another key part of the Court’s 1969 Tinker decision, which actually referred to a 1966 case where black students were suspended from a segregated school for wearing “freedom buttons” in Mississippi. “In order for  [a school]  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,” Justice Abe Fortas said in Tinker.

Nearly 50 years later, the Tinker decision could face more redefinition as social media adds another dimension to these First Amendment questions.

Scott Bomboy is the editor in chief of the National Constitution Center.