To Tweet or Not to Tweet, That Is the Question

Lusk Albertson PLC's picture

Written and provided for MASSP by the attorneys at Lusk Alberston, P.C.

In the days since President Trump's Inauguration, social discourse on a host of issues – immigration, trade, great big walls, and more – seems to have reached a fever pitch, particularly on social media. Fortunate is the Facebook timeline or Twitter feed devoid of political commentary from a relative, friend, or co-worker.

Our young people have not been immune to this rhetoric. In the days following the election, stories of chanting students, (dis)organized protests, and incidents of bullying raced around the globe, offering an unflattering insight into a small, but vocal, segment of America's youth.

Cognizant of the apparent tension in our country, our students have become vocal contributors to the narrative presently being written in our country. And while our young people don't have the platform of mainstream media, they have learned – better than us old folks – how to effectively utilize and leverage social media to express political opinions.

With so much being said on social media these days and so much attention being given to political discourse, we thought it an appropriate time to offer some essential reminders about student online activities, even if occurring off-campus, and the First Amendment implications inherent in such commentary.

Students must be divorced of the notion that online activity occurring off-campus is risk-free. Quite to the contrary, schools may discipline students for online, off-campus speech, if it violates the tenets of the school's student code of conduct and there is a nexus to school activity or if it creates a "substantial disruption" of the school environment.

The "substantial disruption" concept dates back to the 1960s and the landmark case of Tinker v. Des Moines Independent Community School District. There, students wore black armbands in protest of the Vietnam War. While recognizing that students had certain First Amendment protections in the school-setting (students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"), the Supreme Court nonetheless held that such protections do not afford students the right to create a "substantial disruption" of the school environment with their speech.

It's difficult to fathom that we are still talking about black armbands and Vietnam in the context of assessing the First Amendment protections of a student tweeting in 2017. But there have been multiple cases in recent years dealing with student social media activity, all of which rely on the Tinker "substantial disruption" analysis.

One recent case, Bell v. Itawamba County Schools, involved a high school student who wrote a rap song about two coaches at the high school who had allegedly been sexually harassing female students. The lyrics of the song were coarse, profane, and referenced the coaches by name. Though the song was recorded off school grounds and posted on Facebook outside of school, the courts ultimately held that the school could punish the student because his "speech" was not entitled to First Amendment protections due to the "substantial disruption" it created in the school.

It goes without saying that disciplinary decisions regarding student online commentary need to be handled on a case-by-case basis. But it is important for students – and staff – to recognize and understand that the long arm of the school's disciplinary authority may extend to tweets and posts made in the privacy of one's home, under certain circumstances. Responsible civic discourse is an important concept for students to grasp; but there are limits on just how far that discourse can go and realistic limitations to what a student can tweet, post, or message to a public audience.