UPDATES & ANALYSIS

Eighth Circuit: School May Punish Students For Out-Of-School Internet Speech

by Colin Smith | October 19, 2012

[The following summary was written by Nyemaster Goode attorney Colin Smith]

The Eighth Circuit Court of Appeals recently overturned a lower district court’s ruling that stated that a Missouri High School’s suspension and re-assignment of two students who created a derogatory blog about the school and fellow students violated the students’ First Amendment rights. In S.J.W. v. Lee’s Summit R-7 School District, the Court held that while students are entitled to First Amendment protections for speech generated on and off campus, student speech “targeted at” a school that has the potential to “materially and substantially disrupt” school orderliness is not protected.

The case involved twin high school students who created a blog designed ostensibly to “discuss, satirize, and ‘vent’ about events” at the school. However, after the blog’s creation, several offensive and racist postings were published, and word of the blog’s contents circulated around the school. In response to disruptions the school said were caused by the blog – including students accessing and posting to the blog from school computers as well as social discord caused by the blog’s contents – the school suspended the blog’s creators and assigned them to an alternative education facility. The students sued, claiming the speech produced on the blog was protected and that the suspension and re-assignment were improper punishments. A federal district court agreed.

However, on appeal, the Eighth Circuit reversed. Relying on the United States Supreme Court landmark student speech case of Tinker v. Des Moines School District, a case that originated in Iowa, the Court held that while student speech is entitled to protection, that protection is stripped if the speech has the potential to cause disruptions to the educational operations of the school. In this case, the students created a blog that was accessible to anyone, the blog was dedicated to discussing the high school itself, and the speech regarding the high school and other students had caused a significant disruption to the school’s educational mission and to student relations on campus. Therefore, even though the blog was created by the students off campus and during non-school hours, the speech was still punishable by the school under governing precedent.

What is significant about this case is that it not only follows, but also draws upon several recent student speech cases involving the internet and technology that have appeared in other federal courts across the country in recent years. Although each student speech case is heavily fact specific, this latest case is in accord with an earlier ruling from the Eighth Circuit, as well as rulings from the Second and Fourth Circuits that have held that where there is at least some evidence of school disruption, off campus student speech on the internet is punishable as being unprotected. However, one influential ruling from the Third Circuit is in disagreement, holding that where the evidence of disruption to school operations is not sufficiently “substantial” or “material,” then student speech cannot be punished. This split of authority among federal appeals courts leaves the extent of student speech protections in the online era unclear. The Supreme Court declined to hear a pair of similar student speech cases last term, however this latest Eighth Circuit case may provide an additional reason for the High Court to address this issue sooner rather than later.

Tags: Constitutional Law, Eighth Circuit