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New Free Speech Rules For Schools in a Snap(chat): Assessing the Supreme Court Decision

The recent U.S. Supreme Court ruling on free speech for students in the social media era at least established this: You can give your school the finger.

Beyond that, the main takeaway seems to be that social media remains a place potentially fraught with peril – for students, schools and everyone else.

The court, in an 8-1 decision, ruled that a Pennsylvania school district violated the First Amendment by suspending 14-year-old Brandi Levy from her school’s cheerleading team after the student, relegated to the junior-varsity squad, posted to her Snapchat “F--- school f--- softball f--- cheer f--- everything,” adding a photo of herself and a friend extending their middle fingers.

Levy’s parents, after unsuccessful attempts to appeal the suspension with the school district, filed a federal lawsuit with the support of the American Civil Liberties Union.

Supreme Court Justice Stephen Breyer wrote in the majority opinion that “the school’s interest in teaching good manners is not sufficient, in this case, to overcome (the student’s) interest in free expression.”

The Supreme Court case was of keen interest to schools across the nation.

A story in New Yorker magazine, written before the Supreme Court decision, helped set up the stakes: “The cheerleader’s case is ultimately not just about high schools. It has implications for the relation between free speech and discrimination policies at universities, where students and faculty, as adults, are assumed to have even stronger free-speech interests, including academic freedom, and are, perhaps, even more attuned to the need to be free of harassment. As schools at all levels have expanded what they consider to be discrimination, harassment, and bullying in order to promote equal access to education, it was only a matter of time before that unfettered growth came up against the First Amendment, forcing a conscious compromise between values that sometimes threaten to collide.”

Those complex issues are only partially addressed by the ruling, and for schools the issue of students’ behavior on social media outside of school grounds will remain an evolving and often frustrating challenge.

As the Philadelphia Inquirer reported: “But while school districts and free-speech advocates had watched Levy’s case closely, hoping the court would take the opportunity to offer clear guidelines for administrators struggling to define the limits of their ability to police off-campus speech in the digital age, it mostly left them without the answers they were seeking.”

Sara Clark, chief legal counsel for the Ohio School Boards Association, which provides and guidance to public school board members in hundreds of school districts, is on the front lines of that struggle. Clark says schools did get some answers.

“I was glad to see the court identified the following list of ‘special circumstances’ that give schools some additional license to regulate off-campus speech -- serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices,” Clark said. “I think this list will be helpful to schools.”

Clark added, though, that the case does not provide “clear guidance for schools for speech that doesn't appear on that finite list. I think the Supreme Court even admitted that when they wrote: ‘We leave for future cases to decide where, when and how these features (of off-campus speech) mean the speaker's off-campus location will make the critical difference. This case can, however, provide one example.’”

For its part, the Mahanoy Area School District in Philadelphia, while found to have violated the student’s First Amendment rights, said it was “very pleased that the Court agreed with our arguments about schools’ authority to address off-campus speech under a wide variety of situations. This decision is an important vindication of schools’ authority to protect students and staff and to fulfill schools’ educational missions.”

Indeed, the Supreme Court ruling pared back the more sweeping opinion issued by the United States Court of Appeals for the Third Circuit, in Philadelphia, which said the First Amendment did not allow public schools to punish students for speech outside school grounds.

“Unlike the Third Circuit,” Breyer wrote, “we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances.”

From a crisis communications standpoint, the case also reinforces that schools must continue to make social media a priority. It’s certainly not going away. Here are some of our best practices for social media use – before the crisis, in assessing the threat posed by social media posts and for effective response.

  • Know where your audience lives. Are the people who care most about your school more likely to be on Facebook, Twitter, Instagram, your own website, all of the above? You can’t get to your key stakeholders during a crisis if you don’t know where they are.

  • Secure your accounts. Make sure your social media accounts aren’t subject to being hacked or hijacked.

  • Make certain you can access Facebook, Twitter and other social media platforms yourself, at a moment’s notice. Especially if you’ve outsourced that work to third-party marketing or PR firms. If they’ve activated multifactor authentication (a recommended secondary layer of security to make it more difficult for your account to be hacked), you may find yourself unable to access those accounts, even if you have the screen name and password.

  • Establish terms of use. Have rules of engagement for any social media channels where people can comment. Put them on your website. Put them on your Facebook page.

  • Enforce your standards and remove offending posts – but also say why you’ve removed them if people become uncivil, profane, racist, sexist, threatening, etc.  You have rules of conduct in your school.  Have them on your social media pages.

  • Have a process for assessing the threat. You can’t respond to every criticism or controversy bubbling up on social media – unless you want to do nothing else. And beware of feeding oxygen to a small fire. Consider the source – is the problematic post from an employee, student or someone else in a position to know and be perceived as credible? Is the post appearing on multiple social media channels – Facebook, Twitter and Instagram, for example? Is the post attracting a lot of comments and being shared widely?

  • Be prepared to react quickly. Once you’ve determined a social media post threatens your operations or reputation, you must act quickly. Speed is of the essence on social media. Waiting and hoping won’t make it go away.

  • Respond professionally. Don’t get emotional. Stick to the facts.

  • Respond and correct misinformation. But resist the temptation to delete negative postings to your official social media sites unless they are offensive (racist, profane, personal attacks, etc.), violate an individual’s privacy, or otherwise violate your social media usage guidelines.

  • Remember who you’re communicating with. You almost certainly won’t win the argument with your online critics. Your messages are for the people who care about your school and are waiting to hear what you have to say.

© 2023 Hennes Communications. All rights reserved.National Law Review, Volume XI, Number 180

About this Author

Thom Fladung Digital Media Hennes Communications
Managing Partner

Thom Fladung serves as managing partner for Hennes Communications. He brings more than 33 years of daily newspaper and digital media experience to the agency, having served as a top editor at some of the nation’s largest newspapers such as the Cleveland Plain Dealer and the Detroit Free Press. Over the past decade, Fladung also played a lead role in helping newsrooms enter the digital age, including web, social media and handheld digital devices.

Fladung is expert at crafting effective, strategic messages on hard deadlines. He is also experienced at quickly evaluating, assembling...