Legal Brief

Off-Campus Speech in the Smartphone Era
By JOEL D. BUCKMAN/School Administrator, November 2018

YOU ARE A PRINCIPAL reading your morning e-mail at home over coffee, which you almost spill when you click on a link to find a Facebook parody of yourself. Created over the weekend, the page says your birthday is “too drunk to remember,” you recently smoked a “big blunt,” and you are a “big steroid freak,” among other untruths.

When you arrive at school, you learn a student created the page at home. The whole school is abuzz. You want to discipline the student, but can you legally?

On-the-Ground Rights
Before the days of the internet, if a student printed and circulated 1,000 fliers at school containing the same information, the answer would be probably yes. The U.S. Supreme Court has held that students have First Amendment rights at school but not to the same extent as an adult on a street corner.

In general, in addition to unprotected categories of speech (like true threats), school districts may regulate:

» speech that results in actual or reasonable forecasts of “substantial disruption of or material interference with” school activities or the rights of others;

» lewd speech;

» school-sponsored speech, so long as the regulations are reasonably related to legitimate pedagogical concerns; and

» speech that promotes illegal drug use.

It seems a safe bet that the 1,000 fliers would have caused a substantial disruption.

However, the lines blur when students use the internet away from school to discuss the community. This happens all the time about everyone. One day it’s a principal parody. The next it’s a threat of violence. And then it’s peer-to-peer cyber harassment on the basis of race, sex or another protected characteristic (which the law can require a school to stop, certainly when it occurs at school). It can be a challenge for leaders to discern when they can, should or must respond to online speech.

Emerging Frameworks
A handful of U.S. federal appellate court decisions have addressed free speech challenges to punishments for online speech. Results vary.

Courts generally have rejected assertions that districts can never punish off-campus, online speech. At the same time, courts have recognized that online speech is not the same as in-school speech. Specifically, they have refused to permit districts to punish speech because it is lewd or offensive. Courts seem to focus on whether the online speech results in actual or reasonable forecasts of a substantial disruption or interference with others’ rights at school, often with an additional requirement that the offending student intended or could have foreseen that the speech would reach school.

For example, one court upheld a school district’s punishment of students for a social media group titled “Students Against Shay’s [(a fellow student)] Herpes or S.A.S.H.” In its ruling, the court explained “every aspect of the webpage’s design and implementation was school-related.” It called on peers to target the victim knowing it would “damage” her ability to “sit with other students” and “have a suitable learning experience.”

A Factual Basis
In many jurisdictions, the law remains in flux. Yet there seem to be some emerging general guideposts.

School districts tend to win cases when a bona fide threat exists to safety or security or when online speech targets the school and causes an actual or obvious potential disruption or interferes with others’ learning. Districts have run into trouble when the speech is merely offensive or only loosely connected to school.

In the end, however, even where courts have adopted a particular legal framework, it is almost always necessary to conduct a detailed factual analysis. The same day a federal court ruled that a district improperly punished a student for a principal parody much like the one described at the outset of this column, it ruled the other way in a similar case. Even if districts conclude they cannot or should not punish online speech, they always can act to improve the school environment.

JOEL BUCKMAN is a senior associate in the education law practice at Hogan Lovells in Washington, D.C.