One of the most common complaints of students who come to NCAC for assistance is that they have been threatened with discipline for something that they said on social media.
In an important decision that greatly reduced the power of school officials to “reach into a child’s home and control his/her actions” and speech, a panel of the Third Circuit Court of Appeals ruled on June 30 that the Supreme Court’s decision in Tinker v. Des Moines Independent School District does not apply to student speech that takes place off-campus, including on social media. In Tinker, the court declared that schools can ban or punish student speech if it is likely to substantially disrupt the school.
Since the advent of social media, courts have struggled to establish a rule to determine when, if ever, schools can punish a student for potentially disruptive speech on social media. Some courts have held that the school can do so where it was reasonably foreseeable that a student’s off-campus speech would affect the school environment. Other courts have applied Tinker to off-campus speech with a sufficient “nexus” to the school’s “pedagogical interests.” Still others have said that Tinker applies only when the student intentionally directs his or her speech at the school.
The Third Circuit panel rejected all of those rules, for three reasons: First, in a textbook example of the dangers of the “slippery slope,” the rules have been applied too broadly, to cases which in no way implicate the narrow concerns of the courts that originally promulgated the rules.
Second, in the digital age, the tests “sweep far too much speech into the realm of schools’ authority.” For example, when a student speaks today, he or she speaks most often online, where it is “reasonably foreseeable” that almost everything will eventually come to the attention of his or her school community. That was not true in the past, when, as the court notes, “it was merely a possibility, and often a remote one, that the speech of a student who expressed herself in the public square would ‘reach’ the school.”
Finally, the rules promulgated by other courts have failed to provide clarity and predictability, so that neither school officials nor students know what is and is not permitted. Hence, the rules violate the basic principle that “in the First Amendment context, courts must pursue ex ante clarity not for clarity’s own sake, but to avoid chilling potential speech and to give government officials notice of the constitutional boundaries they may not cross.”
The court also noted that “[t]he consensus in the analog era was that controversial off-campus speech was not subject to school regulation,” and that recent Supreme Court cases which recognize that the internet is the new public square, ”require that we adhere to that principle even as the speech moves online.”
Hence, the Court held that Tinker does not apply to student speech that takes place off-campus.
The Third Circuit opinion of course does not entirely resolve this issue. The court explicitly declined to opine on whether schools can punish students for off-campus speech that threatens violence or constitutes harassment. Moreover, other circuits may well decline to follow the Third Circuit’s lead.