When Social Media Becomes an Oxymoron, Part I: Free Speech, True Threats, & “Just Kidding” - National Association of Attorneys General

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• The School District, on the other hand, asserted it coul sanction off-campus student speech where such behavior creates a foreseeable risk of reaching school property and causing a substantial disruption.

• The Reasonable Foreseeability Test Unlike the Nexus Test, the Reasonable Foreseeability Test involves student off-campus speech that is directed at the school. Targeting the school is not enough, however. There still needs to be a substantial disruption, the likelihood of substantial disruption, or the impingement on the rights of other students. Blogs, Cyberbullying, and Tinker

• The Fourth Circuit’s analysis relied upon Tinker and Fraser. While it acknowledged the Supreme Court has not dealt with a dispute that has similar factual circumstances where one student’s speech targets a classmate for verbal abuse, Tinker did recognize the need for regulation of student speech that interferes with the school’s work and discipline because of a substantial disruption; where there is a reasonable likelihood of a substantial disruption; or where such speech interferes with the rights of other students. “Thus, the language of Tinker supports the conclusion that public schools have a ‘compelling interest’ in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying.”13

• The Court found that she was likely to succeed on the merits because her speech had not caused a substantial disruption and because her off-campus speech was not subject to the school district’s authority under Fraser. The court was not condoning the student’s profane gesture but was enjoining the school from overreaching its authority.

• The court enjoined the school district’s attempt to sanction the girls, noting that Fraser cannot be applied to off-campus speech. Although Tinker can be applied to off-campus speech, there is no showing of substantial disruption and there is no reasonable likelihood that such would occur, especially as the girls used privacy settings. Even though the photographs were “juvenile and silly,” the First Amendment protects such speech. There are not gradations of protection. Speech is speech. In this case, Fraser cannot be applied, and the speech at issue does not run afoul of Tinker. The school district was enjoined from punishing the students for their off-campus speech.

• The federal district court granted the twins’ Motion for a Preliminary Injunction, finding that they would suffer irreparable harm if injunctive relief were not granted (inadequate educational services, inability to try out for band); they were likely to succeed on the merits of their complaint; and the public interest would be served by issuing the injunction. In reaching its conclusion, the district court accepted that the NorthPress posts caused “considerable disturbance and disruption” at the school on December 16, but that the third person’s post was the primary reason for the disturbance. Nevertheless, a post about a female student by one twin and several racist entries by the other added to the disruption. The district court also found the blog was “targeted at” the high school. The school district appealed.

• Two influential cases in this genre were decided the same day en banc by the U.S. Court of Appeals for the Third Circuit: J.S. v. Blue Mountain School District32 and Justin Layshock v. Hermitage School District.33

• J.S. and her parents then sued the School District, claiming the suspension violated J.S.’s free speech rights; the School District’s policies were overbroad and vague; and the School District violated the parents’ Fourteenth Amendment substantive due process rights regarding the rearing of their child.

• Nor did Sagehorn’s speech cause any substantial disruption. The “general rule” is that off-campus student speech is protected under the First Amendment unless the speech constitutes a “true threat” or the speech was “reasonably calculated to reach the school environment and [was] so egregious as to pose a serious safety risk or other substantial disruption in that environment.”

• Even though the student speech occurred off-campus and was directed at a fellow student—and not the school—it nevertheless had sufficient nexus with the school because the speech violated the school’s Harassment, Bullying, and Intimidation Policy and the Student Code of Conduct, which put Kowalski on notice that harassing another student could have consequences.

• The Nexus Test does require that the off-campus speech actually result in substantial disruption or material interference with school purposes, creates a reasonable likelihood that this will occur, or impinges upon the rights of other students

• did cause the type of interference and disruption that Tinker found did not merit First Amendment protection.

• defamatory content

• using that student’s photograph along with unsavory description

• The Fourth Circuit had some parting shots for Kowalski. They characterized her webpage as “mean-spirited and hateful,” especially as she urged fellow students to engage in pack behavior in attacking the victim. Kowalski knew that such activities would be hurtful to the victim and would affect her ability to benefit from the learning experiences at the high school. This conduct is “indisputably harassing and bullying.”

• The Layshock court concluded: The [Second Circuit] reached that conclusion even though the students actually stored the offending publication inside a classroom and did some minimal amount of work on the periodical in school using school resources. Here, the relationship between Justin’s conduct and the school is far more attenuated than in Thomas. We agree with the analysis in Thomas. Accordingly, because the School District conceded that Justin’s profile did not cause disruption in the school, we do not think that the First Amendment can tolerate the School District stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school in order to punish him for the expressive conduct that he engaged in there.41

• The Supreme Court did refer to the “rights of others” generally, but the Third Circuit felt that may have been dicta. A proper reading would mean the invasion of the rights of “other students to be let alone.” Applying this to this dispute, the School District would not be justified in punishing J.S. for her speech even if it did invade the rights of the principal. Tinker was not meant to protect the principal. J.S., 650 F.3d at 931, n.9.

• Id. at 53. See also Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011). (finding school personnel entitled to qualified immunity from constitutional challenges arising from preventing the student from running for class office and wearing a t-shirt, and finding no equal protection violation). Two other cases that applied the reasonable foreseeability test to off-campus threatening speech were discussed in Part I in the May issue. See Wisniewski v. Board of Education of Weedsport Central School Dist., 494 F.3d 34 (2d Cir. 2007), and J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002).

• For the time being, courts (and public schools) will need to extrapolate from the Supreme Court’s four decisions, all of which occurred on campus or at a school-sponsored event and involved more traditional concepts of speech: Tinker v. Des Moines Ind. Community Sch. Distr., 393 U.S. 503 (1969) (“pure speech” in a school context cannot be banned absent a substantial disruption or material interference with school function or a reasonable forecast of substantial disruption, or interference with rights of others); Bethel School District v. Fraser, 478 U.S. 675 (1986) (student’s sophomoric speech at assembly—which contained offensive, indecent, and lewd references—was not protected speech and could be regulated because vulgar or indecent speech and lewd conduct in the classroom or school context is inconsistent with the fundamental values of public school education); Hazelwood Sch. Dist.v. Kuhlmeier, 484 U.S. 260 (1988) (school could exercise editorial control over the style and content of student articles in school newspaper because newspaper was part of journalism class experience and, accordingly, was part of a school-sponsored expressive activity; however, such editorial control must be “reasonably related to legitimate pedagogical concerns”); and Morse v. Frederick, 551 U.S. 393 (2007) (a message reasonably viewed as advocating illegal drug use—“Bong HiTS 4 Jesus”—need not result in a substantial disruption before school officials could restrict such speech on school property or at a school event).

• For the time being, courts (and public schools) will need to extrapolate from the Supreme Court’s four decisions, all of which occurred on campus or at a school-sponsored event and involved more traditional concepts of speech: Tinker v. Des Moines Ind. Community Sch. Distr., 393 U.S. 503 (1969) (“pure speech” in a school context cannot be banned absent a substantial disruption or material interference with school function or a reasonable forecast of substantial disruption, or interference with rights of others); Bethel School District v. Fraser, 478 U.S. 675 (1986) (student’s sophomoric speech at assembly—which contained offensive, indecent, and lewd references—was not protected speech and could be regulated because vulgar or indecent speech and lewd conduct in the classroom or school context is inconsistent with the fundamental values of public school education); Hazelwood Sch. Dist.v. Kuhlmeier, 484 U.S. 260 (1988) (school could exercise editorial control over the style and content of student articles in school newspaper because newspaper was part of journalism class experience and, accordingly, was part of a school-sponsored expressive activity; however, such editorial control must be “reasonably related to legitimate pedagogical concerns”); and Morse v. Frederick, 551 U.S. 393 (2007) (a message reasonably viewed as advocating illegal drug use—“Bong HiTS 4 Jesus”—need not result in a substantial disruption before school officials could restrict such speech on school property or at a school event).