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Students and Social Media: The Supreme Court Could Decide Whether Schools May Punish Off-Campus Online Speech

A teenager who posts a racy photo on Facebook might be grounded for a week, but should the teen also be suspended from school or kicked off the swim team?

A flurry of recent court decisions is bringing just this issue to the fore:?á can a public school punish its students for their off-campus online activities?

One student has appealed her case to the U.S. Supreme Court, giving the Court its first opportunity to determine how much protection the First Amendment affords to a student?ÇÖs use of social media.

A Matter of First Impression

A former high school student who was suspended for her off-campus blog posting has filed a petition for certiorari with the Court.[1]?á The student, Avery Doninger, has claimed that the suspension violated her First Amendment rights to free speech and expression.[2]?á The Second Circuit sided with the school district in 2008 and again in April of this year.

Doninger?ÇÖs petition comes at an opportune time.?á In June, the U.S. Court of Appeals for the Third Circuit decided two cases, discussed below, in which a student was punished for using the social networking site MySpace to disparage a school official.[3]?á In both cases, the court held that the students?ÇÖ use of the site, which occurred off campus on home computers, was protected speech.[4]?á But in more recent decisions by the Fourth and Eighth circuits, the courts held that even off-campus use of social media can be punishable if it is likely to cause a substantial disruption on campus.[5]

The apparent conflict could prompt the Court to take up the question of whether a school may punish its students for their off-campus use of social media. The issue would be one of first impression for the Court.

Student Speech in the Pre-MySpace Era

In its landmark decision in Tinker v. Des Moines Independent Community School District in 1969, the Supreme Court held that student speech may not be suppressed unless school officials reasonably conclude that it will ?Ç£materially and substantially disrupt the work and discipline of the school.?Ç¥[6]?á The Court held that wearing black armbands to protest the Vietnam War would not substantially disrupt school activities and was therefore protected symbolic speech.

Since Tinker, the Court has identified some narrow exceptions to the ?Ç£substantial disruption?Ç¥ standard.?á In Bethel School District v. Fraser in 1986, for example, the Court held that a school could punish a student for a sexually vulgar speech made on campus.[7]?á And more recently in Morse v. Frederick in 2007, the Court held that a school could suppress even off-campus student speech if the speech occurs at a school-sponsored event and is reasonably viewed as promoting illegal drug use.[8]

Doninger v. Niehoff

The Supreme Court has yet to consider student speech expressed through social media, but the Second Circuit confronted that issue in 2008 in the case of Doninger v. Niehoff.[9]

High school junior Avery Doninger was disqualified from running for senior class secretary after she used the blog service LiveJournal to post what the court called ?Ç£a vulgar and misleading message about the supposed cancellation of an upcoming school event.?Ç¥[10]?á Doninger and her parents sued to force the school to let her serve in student leadership, but the District Court denied the injunction.[11]

The Second Circuit applied Tinker?ÇÖs ?Ç£substantial disruption?Ç¥ standard and affirmed.?á The court found that, in light of the incendiary nature of the blog post and the misleading information it contained, Doninger?ÇÖs post created ?Ç£a foreseeable risk of substantial disruption to the work and discipline of the school.?Ç¥[12]?á Doninger could be punished for her off-campus, online speech that contained misleading facts about a school event and vulgar references to school officials.

In her petition to the Supreme Court, Doninger argues that the Second Circuit?ÇÖs decision was incorrect, and it conflicts with two recent Third Circuit cases, where the court held that school officials overreached when they punished off-campus use of social media.[13]

J.S. v. Blue Mountain School District

In J.S. v. Blue Mountain School District, a middle school student identified as ?Ç£J.S.?Ç¥ used a home computer to create a fake MySpace profile of her principal.[14]?á The profile contained, in the words of the Third Circuit, ?Ç£crude content and vulgar language, ranging from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family.?Ç¥[15]?á The school district suspended J.S. for ten days.

Arguing that Tinker was the controlling case, and that J.S. had caused no substantial disruption, J.S. sued the Blue Mountain School District.?á The District Court ruled in the school?ÇÖs favor, holding that even though J.S.?ÇÖs conduct did not cause a substantial disruption, the lewdness of the speech warranted an exception under the Supreme Court?ÇÖs decision in Fraser.[16]

The Third Circuit, sitting en banc, overruled the District Court as to J.S.?ÇÖs First Amendment claim.[17]?á The court rejected the notion that the Fraser exception should stretch to cover the circumstances of the case.?á The court held that ?Ç£Fraser?ÇÖs ?Çÿlewdness?ÇÖ standard cannot be extended to justify a school?ÇÖs punishment of J.S. for use of profane language outside the school, during non-school hours.?Ç¥[18] The school district has announced that it will petition the Supreme Court for review of the decision.[19]

Layshock v. Hermitage School District

On the day it decided the J.S. case, the Third Circuit also issued a decision in the similar case of Layshock v. Hermitage School District.[20]?á High school junior Justin Layshock sued after he was suspended for using a home computer to create a fake MySpace profile of his principal, using a photograph that he copied and pasted from the school district?ÇÖs website.[21]

The District Court sided with Layshock on his First Amendment claim.?á The court found that even though the profile was viewed on school computers and prompted a general buzz on campus, the School Districtcould not establish ?Ç£a sufficient nexus between Justin?ÇÖs speech and a substantial disruption of the school environment.?Ç¥[22]

On appeal, the school district argued that Layshock?ÇÖs speech was lewd and was sufficiently connected to school property to fall under the Supreme Court?ÇÖs decision in Fraser.?á Layshock?ÇÖs speech ?Ç£initially began on-campus,?Ç¥ the school district argued, when he ?Ç£entered school property?Ç¥ by accessing the school district?ÇÖs website to copy the principal?ÇÖs photograph.[23]

In its decision, the Third Circuit wrote that the school district?ÇÖs argument ?Ç£equates Justin?ÇÖs act of signing onto a web site with the kind of trespass he would have committed had he broken into the principal?ÇÖs office or a teacher?ÇÖs desk; and we reject it.?Ç¥[24]?á The court held that Fraser could not be construed to cover off-campus speech that has no real ties to school property.[25]?á The court affirmed the District Court?ÇÖs grant of summary judgment in Layshock?ÇÖs favor.[26]

Fourth and Eighth Circuits Tinker with Tinker

Within weeks of the Third Circuit?ÇÖs decisions in J.S. and Layshock, two other circuits issued opinions involving off-campus student use of social media.?á In both cases, the court held that Tinker?ÇÖs substantial disruption standard could apply to communications sent between home computers outside of school hours, and students could be punished for their off-campus speech.

In the Fourth Circuit case of Kowalski v. Berkeley County Schools, high school senior Kara Kowalski was suspended for using a home computer to create a disparaging MySpace group page.[27]?á Kowlaski claimed that the page was devoted to raising awareness of sexually transmitted diseases, but the school argued that the page was in fact directed at a particular student, identified as ?Ç£Shay N.?Ç¥[28]?á Kowalski invited 100 of her MySpace friends to join the group, and several of those friends posted disparaging comments about Shay N. on the new page.?á Kowalski sued after the district suspended her for ten days.?á In its July 27 opinion, the Fourth Circuit held that the school district?ÇÖs punishment was permissible.[29]?á The court found that Kowalski?ÇÖs actions were ?Ç£sufficiently connected to the school environment?Ç¥ to trigger Tinker?ÇÖs substantial disruption analysis.[30]?á The court held that a substantial disruption had occurred, and under Tinker the school could punish Kowalski for her off-campus speech.[31]

In the Eighth Circuit case of D.J.M. v. Hannibal Pub. Sch. Dist., a tenth-grade student identified as ?Ç£D.J.M.?Ç¥ used a home computer to send instant messages to another student, who was also using a home computer.[32]?á The messages described D.J.M.?ÇÖs desires to obtain a gun and kill other students.[33]?á After the messages came to light, D.J.M. spent the following months in a juvenile detention center, and he was also suspended from school for the remainder of the school year.[34]?á In its August 1 opinion, the Eighth Circuit held that D.J.M.?ÇÖs speech was punishable on two grounds.[35]?á First, it constituted an unprotected ?Ç£true threat?Ç¥ against a fellow student.[36]?á Second, the speech caused a substantial disruption under Tinker.[37]?á The Eighth Circuit held, albeit in dicta, that under Tinker a student may be punished for off-campus speech.[38]

Fit For Appeal?

In J.S. and Layshock, the Third Circuit stopped short of adopting the Tinker standard in the context of speech that occurred off-campus.?á This approach contrasts with the decisions from the Second, Fourth, and Eighth circuits, discussed above, in which the courts held that Tinker may indeed apply even to off-campus speech.?á Of course, J.S. and Layshock could be viewed as involving speech in the nature of opinion, while the other cases involved statements that contained misleading facts, bullying, or threats of physical harm, which could have contributed to the application of Tinker outside of the Third Circuit.

If members of the Supreme Court view the circuit courts?ÇÖ decisions as conflicting, the Court will be more likely to grant review of Doninger?ÇÖs petition in order to resolve the split.?á Even if the cases are not read as directly conflicting, the Court may use this opportunity to update its school speech jurisprudence for the social networking generation.


[1] See Doninger v. Niehoff, No. 11-113 (U.S. July 25, 2011), filing history available at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-113.htm.
[2] See Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008); Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011).
[3] See J.S. v. Blue Mountain Sch. Dist., No. 08-4138, 2011 U.S. App. LEXIS 11947 (3d Cir. June 13, 2011); Layshock v. Hermitage Sch. Dist., No. 07-4465, 2011 U.S. App. LEXIS 11994 (3d Cir. June 13, 2011).
[4] Id.
[5] See Kowalski v. Berkeley County Sch., No. 10-1098, 2011 U.S. App. LEXIS 15419 (4th Cir. July 27, 2011); D.J.M. v. Hannibal Pub. Sch. Dist., No. 10-1428, No. 10-1579, 2011 U.S. App. LEXIS 15799 (8th Cir. Aug. 1, 2011).
[6] 393 U.S. 503, 514 (1969).
[7] 478 U.S. 675, 685-86 (1986).
[8] 551 U.S. 393, 408-10 (2007).
[9] 527 F.3d 41 (2d Cir. 2008); see also Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011).
[10] 527 F.3d at 43.
[11] Doninger v. Niehoff, 514 F. Supp. 2d 199, 219-20 (D. Conn. 2007).
[12] 527 F.3d at 53.
[13] David L. Hudson Jr., High court asked to hear student online-speech case, First Amendment Center, July 29, 20011, available at http://www.firstamendmentcenter.org/high-court-asked-to-hear-student-online-speech-case.
[14] No. 08-4138, 2011 U.S. App. LEXIS 11947 (3d Cir. June 13, 2011).
[15] Id. at *4.
[16] J.S. v. Blue Mountain Sch. Dist., No. 3:07cv585, 2008 U.S. Dist. LEXIS 72685, at *17-18 (M.D. Pa. Sept. 11, 2008).
[17] 2011 U.S. App. LEXIS 11947, at *39.
[18] Id.
[19] Amy Marchiano, Blue Mtn. to appeal Myspace case to high court, Republican Herald, June 24, 2011, available at http://republicanherald.com/news/blue-mtn-to-appeal-myspace-case-to-high-court-1.1166348.
[20] No. 07-4465, 2011 U.S. App. LEXIS 11994 (3d Cir. June 13, 2011).
[21] Id. at *3-4.
[22] Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 600 (W.D. Pa. 2007).
[23] 2011 U.S. App. LEXIS 11994, at *23.
[24] Id. at *24.
[25] Id. at *28.
[26] Id. at *37-38.
[27] See Kowalski v. Berkeley County Sch., No. 10-1098, 2011 U.S. App. LEXIS 15419 (4th Cir. July 27, 2011).
[28] See id. at *3.
[29] See id. at *24.
[30] Id. at *2.
[31] See id. at *24.
[32] No. 10-1428, No. 10-1579, 2011 U.S. App. LEXIS 15799 (8th Cir. Aug. 1, 2011).
[33] Id. at *4-5.
[34] Id.
[35] Id. at *25-30.
[36] Id. at *24-25.
[37] Id. at *26-30.
[38] Id. at *29-30.
David Bell is a partner in the Dallas, TX office of the law firm of Haynes and Boone, LLP. He is the chair of the firmΓÇÖs Social Media Practice. He may be reached at david.bell@haynesboone.com or 214.651.5248. Follow David on Twitter or add him to your LinkedIn network.

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December 2011