Q: What authority do public school officials have to punish me for my off-campus use of Twitter, Snapchat, Instagram and other private social media platforms?
A: That’s a much-debated — and still open — question that depends on where you are and what you’re posting. But some general rules are emerging and a federal appeals court late last month drew some important lines protecting student free speech rights outside of school that other appellate courts, until now, have been hesitant to recognize.
First, there is no debate that school officials’ authority to control or punish you for speech outside of school is much more limited than when you’re in school. But some courts, relying on the U.S. Supreme Court’s decision in Tinker v. Des Moines, have continued to allow schools to punish students for their off-campus speech when administrators show that it would have a disruptive effect on school operations. That’s allowed many school officials to try and punish students for speech and conduct that in years past, if punishment was warranted, would have been the responsibility of parents (or in extreme situations, police or courts.)
SPLC has argued, with others, that school officials should have almost no authority over students’ off-campus speech. That is, students should not automatically be put into some “second-class citizen” category allowing a principal or other school official to police their speech 24/7, but should generally have the same First Amendment protections as everyone else when away from school. Likewise, students are fully responsible for their speech and subject to the same laws and restrictions. In a late-June decision, a federal court of appeals agreed and ruled that school officials went too far in punishing a student for posting a vulgar, but otherwise lawful, comment on her Snapchat while away from school one weekend. The court held that school officials cannot use the U.S. Supreme Court’s decision in Tinker to target students’ off-campus speech that occurs on platforms that are not owned, operated or otherwise tied to the school. Given the different approaches taken by courts around the country and the ever-increasing use by students of non-school speech platforms, it looks like it will be up to the Supreme Court to finally settle the issue. This decision will be key in framing the argument.