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Does Social Media Change Free Speech Rights For Students?

Published: Monday, January 4, 2021 - 12:26pm
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MARK BRODIE: The U.S. Supreme Court is considering whether to hear a case from Pennsylvania in which a high school student was punished for a post she made on Snapchat. The New York Times reports the student, who had found out earlier that day she had not made the varsity cheerleading team at her school, sent a message on the social media platform, which included cursing and other comments. After another student showed a screenshot of the post to her mom, who's also a coach, the girl who'd posted the message was suspended from cheerleading for a year. The student then sued the school district and won, with an appeals court ruling the First Amendment does not allow schools to discipline students for speech that happens away from school. This is not the first case involving free speech rights for students. And with me to talk more about this is Gregg Leslie, a professor of practice and executive director of the First Amendment Clinic at the Sandra Day O'Connor College of Law at ASU. And, Gregg, in general, what are the rules of the road for students posting on social media, and schools having the ability to discipline them? Is there even a clear set of rules for this?

GREGG LESLIE: There is no clear set of rules — that's the first thing to understand. It really is an unsettled area. Part of the confusion comes through the way we ask the question in the first place. Are we really talking about social media or on vs. off campus, or are we just talking about speech that disrupts a school environment? So many of these cases seem to be better resolved by saying, "Is this really disruptive of a school environment?" Like somebody shouting while a teacher is trying to lecture. Because that seems to me the classic case of where schools can limit what students do. And the Supreme Court has acknowledged that in its landmark case in this area where it said there is a First Amendment right of students to speak generally, regardless of whether we're talking about on or off campus, as long as they're not truly disrupting the school atmosphere. So when we then look further at the question of, well, what happens when young students step off campus and start talking to each other? Can the school regulate that? And really, the question should come down to not whether it's on or off campus, but whether it truly disrupts the atmosphere and the, you know, the actual teaching of classes at the school. And in my opinion, and I'm obviously a First Amendment diehard, but in my opinion, most of these cases really don't disrupt what's happening at school.

BRODIE: Is disruptive, though, kind of in the eye of the beholder? Is it one of those, you know, as the story goes, you can't really define obscenity, but I know it when I see it? Is disruptive, the same kind of thing.

LESLIE: I think there's no doubt that it is because school administrators find a lot of things disruptive, that other people looking at just how students discuss ongoing controversies would not find disruptive. So it is one of those things that's the classic problem with legal interpretation. Once you apply the label disruptive to some of these conversations, that's not something that we're all going to agree on in almost any situation.

BRODIE: Is there a legal difference between public schools and private schools in this setting?

LESLIE: Yeah, there's a great difference because a lot of this comes down to that issue of government control of speech. So if you're going to a private school where you don't have government action involved in these activities, these questions really don't come up. They just have much greater leeway to say, "If you're attending our school, we get to set the rules and we can limit things more."

BRODIE: Does that also apply in higher education? The difference between public and private? I mean, and I know that ASU is sort of undergoing some First Amendment issues. And I'm not going to ask you to, to comment specifically on those cases because you're affiliated with the university. But is there a difference between either K-12 and higher ed or public and private higher ed?

LESLIE: There definitely should be in the sense that, you know, in a high school setting, you are dealing with that fact that the government has the right to tell students they have to attend, and so they do have greater control over that forum or anything that happens in that forum. Once you get into a university setting, it's clear that the same rules don't apply. The U.S. Supreme Court has not been all that helpful in this area. They should have drawn a pretty bright line between high schools and post-secondary education, but they muddied it somewhat. So they, you know, they, they haven't come out and drawn that bright line and said First Amendment considerations don't give schools the same kind of control over student speech in the university setting.

BRODIE: Do the same rules apply to people who are not students? Like, for example, in the Pennsylvania case, if the student's parent had written that same thing, is there anything that could happen to anybody in that case?

LESLIE: I wouldn't think so. I can't imagine there could be a justification for disciplining anyone in that situation. And that's kind of what makes it so difficult. We know a lot of this speech goes on. Everybody knows that high school students are saying vulgar things to each other, especially about teachers or about cheerleading or something like that. We know that expression is going on. It's just now that it can be documented on social media, it suddenly interjects itself into a more professional realm and suddenly has to be resolved in some more professional or official way.

BRODIE: Right. Well, and that kind of goes back to what we were talking about earlier — the idea of disruption. Like if it's going on and people don't necessarily, like, they know what's going on, but they don't hear it, they, it's not affecting anybody, it seems like by definition that would not be disruptive.

LESLIE: Right. Yeah, I would agree with that. You would need a very broad definition of what is disruptive in order to say that any kind of conversation between students that can lead to additional controversial conversations would be disruptive. So, yeah, I think that kind of shows that it's just very hard to kind of take everything to that question of what is disruptive if you're going to define it that broadly. So if you define it more narrowly to say things that actually interfere with being able to talk in a classroom or maybe even beyond that into student activities, you know, actual disruption, then it becomes much easier to understand the justification for it, it becomes easier to handle all these little permutations of what we have to consider each time. So I think if you keep that definition narrow to disruptions of the actual school activities, it then becomes a, a more defensible rule to rely on.

BRODIE: All right. That is Gregg Leslie, a professor of practice and executive director of the First Amendment Clinic at the Sandra Day O'Connor College of Law at ASU. Gregg, nice to talk to you. Thank you.

LESLIE: Thanks for having me.

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