Kids — and specifically, public school students — don’t have the same free speech rights adults do.
In 1969, the Supreme Court ruled that public schools could punish students for disruptive speech (read the decision here) because, as Vox put it (here), “Teachers and school administrators have to have the authority to maintain classroom order, to punish bullying, and to otherwise maintain an orderly learning environment [in order ] for schools to function.” This doesn’t mean public school students have no rights; rather, as Vox says, those rights “are diminished but not eliminated.”
This isn’t much different from what students will face after transitioning from schooling to jobs; employers can regulate speech in their workplaces. There’s even less freedom there, because employment is entirely at will (absent a contract), so the employer can fire you for any reason or none at all.
(Some people mistakenly think you have “First Amendment rights” at work. You don’t. The First Amendment only applies to government regulation of speech, and has no application in private settings. Nor is there a constitutional right to be employed. Also note that, for the same reason, there’s no free speech rights for students in private schools.)
The Court isn’t revisiting that precedent in the current term, but will decide a case involving a high school student’s off-campus speech (story here). A girl angered by being passed over for promotion to the varsity cheerleading squad expressed her feelings on social media, and the school reacted by suspending her from the cheerleading team for a year. Her father contacted the ACLU, and she sued the school district.
In a way, her case is moot, because that happened several years ago and she’s now in college. But the issue isn’t moot because whether schools can regulate students’ off-campus speech about school affairs is an open question. A federal appeals court sided with her, and the school district appealed.
In the past, what she did wouldn’t have mattered, but social media has changed that. Now, an obscene gesture and vulgar whine into a smartphone can go viral and spread through the community instantly. This amplification of formerly private petulant behavior gives it the same or greater impact than what the Court grappled with back in 1969.
It’s not a simple problem with a clear-cut answer. What if a student posts “an image online of a pistol firing a bullet into a man’s head” under a picture of his English teacher? (Read a federal appeals court’s 2007 decision upholding the school’s suspension of that student here.) That conduct, too, involved off-campus speech transmitted through social media, although the fact it involved a threat against a teacher gives the school a heightened interest in the conduct that doesn’t exist (at least not to that degree) in the disgruntled cheerleader’s case.
Probably the real reason the Supreme Court is taking on this case is not just because lower courts have struggled with the issue, but because they disagree, as laid out in detail in the Vox article. The Court can decide only a limited number of cases each year, and a common reason for accepting an appeal at that level is to resolve conflicting decisions in the lower federal courts.
But it’s also important for schools to know what — if anything — they can do about, say, cyberbullying among their students. Technology and social media have changed the dynamics of social interaction and the impact of personal behavior. Because of that, Vox says, the Court “is going to need to construct a new set of legal rules that recognizes that off-campus speech is distinct from on-campus speech, but also that off-campus speech can sometimes impact the school community in ways that schools need to be equipped to handle.”
In other words, a changed society needs new rules for coping with the changes.
Follow Up: Why it’s an incredibly tough case to decide, and the “off ramps” the Court could take to wriggle out of it: Read article here.
Photo: The “cursing cheerleader”