Does First Amendment protect students' online speech off-campus?
The Supreme Court declined to take up Tuesday three potentially important test cases of the First Amendment of students engaged in controversial speech on the Internet.
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“An opposite holding would significantly broaden school districts’ authority over student speech and would vest school officials with dangerously overbroad censorship discretion,” the court said.Skip to next paragraph
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The decision raises a difficult question of how school officials are to respond to offensive speech by students on the Internet and other social media when the comments are made off campus, after school.
In some cases the target is a fellow student, in others it is a teacher or school administrator.
Appeals courts have reached conflicting opinions in similar cases.
Some courts have upheld efforts by school administrators to censor and punish students for words the administrators found offensive and potentially disruptive at school even though the words were written off campus and after school hours.
Other courts have ruled that students enjoy a First Amendment free speech right to express their personal views about school and school officials while outside school.
“School administrators … are understandably confused,” wrote Francisco Negron of the National School Boards Association in a friend of the court brief urging the court to take up the case.
“Given the exploding role of technology in the lives of students, clear guidance from this court on how schools may regulate student speech that originates away from the traditional school campus but dramatically affects the learning environment is imperative,” Mr. Negron wrote.
The leading precedent in this area of law was announced by the Supreme Court in a 1969 case called Tinker v. Des Moines Independent Community School District. In that case, students sought to wear black armbands to school to protest US involvement in the Vietnam War. School officials refused, saying the armbands would cause a significant disruption at school.
The high court sided with the student protesters, ruling that student expressions of opinion in school were protected by the First Amendment unless school officials could demonstrate that the forbidden conduct would cause a significant disruption at the school.
The high court has also ruled that school officials may regulate lewd, vulgar, indecent, and offensive speech by students in school even when such speech might not cause a substantial disruption.
The issue in the Blue Mountain case was whether those same rulings may be applied to speech by students off campus, after school.
“When the 2012 school year opens next fall, teachers and administrators need to know whether the First Amendment requires them to sit on their hands in response to student behavior that, as painful real-world experience demonstrates, can ruin careers, disrupt and undermine the school’s learning environment, and, indeed, endanger the very health and well-being of their students,” wrote James Ryan in his brief on behalf of Blue Mountain School District.
In addition to the Blue Mountain case, the high court refused to take up two other student speech cases.
In 2005, Justin Layshock, a senior at Hickory High School in Pennsylvania, used his grandmother’s home computer to create a profile of Principal Eric Trosch. Mr. Layshock included an accurate photo of Mr. Trosch but listed fictitious answers to standard survey questions. The answers suggested the school principal engaged in illegal drug use, excessive consumption of alcohol, as well as lewd and criminal behavior.