Proposed bright-line rule for regulating speech: was the student using any school resources whatsoever in making or disseminating the speech?
A student standing on campus, or using a school-issued device, or on school wifi, or using a school-issued hotspot, or using a school account, is implicating the government in her speech. Just as your speech may be curtailed in a courthouse or a school or a legislative building, it may be curtailed here in order to prevent impeding government functions.
But if the speech occurs without government resources, it’s not the school’s business.
I like having a bright-line rule like this, but I’m uncomfortable with how it’d intersect with bullying or off-campus sexual harassment or the like.
IMHO, that makes little sense. Suppose the school provided Chromebooks for use at home. The girl posts the exact same thing on her school provided Chromebook. The disruption is the same.
Some posters think that this is no disruption at all and others think it is. Why is the specific device she used relevant to the analysis? Why is it different if the student runs a foot off of school property and yells at the coach that he is a motherfucker?
You’re going to have to explain to me exactly what the hell you’re arguing here, because these paragraphs seem in tension with one another. In the first, you take an absolute position that a student’s out-of-school speech on a matter of general politics or social issues is not relevant to the school, and therefore cannot be punished by the school.
But then, in the subsequent paragraphs, you take the position that social media effectively eliminates the in-school/out-of-school distinction, and that the location issue has “no real world meaning” when everyone is able to see what we post online.
But if a teacher can prevent me from saying something on campus because the content of my speech is likely to disrupt school activities, and if social media means that the in-school/out-of-school distinction has “no real world meaning,” then why can’t the school prevent me from publicly taking a whole variety of social or political positions on social media, even when I’m not in school? If what I say on social media is likely to affect students and cause disruption in the school, then Tinker theoretically allows the school to sanction me for social media posts that might cause such disruption. Which is exactly the point that Eugene Volokh was making.
Let’s tweak the example you give, using your own opinions:
If I was a young black student on campus, I would want schoolmates and fellow students who supported me as a human being and an equal, and who did not believe that I was inferior by virtue of my race. I wouldn’t want fellow students who support the white nationalist movement. But these guys from my class posted social media pictures of themselves attending a white nationalist rally on the weekend. This is the school community that they are affecting with their posts. I don’t want to be their classmate. It directly affects the class and the school.
I suggest that a situation like this would arguably have a greater negative impact on school harmony and discipline than a student saying “Fuck cheer.” Do you think that the school should be able to punish the students for posting social media pictures of their attendance at a white nationalist rally?
This is definitely an area where hard facts can make bad law. To expound on your point, we can go very broadly and say that anything can affect the school environment. If the kid attends an anti-abortion rally wearing an “Abortion is Murder” shirt, then some girl in his class that had an abortion might feel the same way about him: he thinks I am a murderer, so I don’t want to be in class with him. Or a kid who attends a Green New Deal rally has a fellow classmate whose father is a coal miner. Or a kid attends an LGBTQ rally and another classmate is a fire and brimstone Baptist. The list is endless. You could even argue that a kid’s parent’s belief on things would cause a school issue.
Obviously another kid saying I am inferior because of my race is an odious and larger issue. But to protect the balance of school regulation and free speech, the school must only regulate school issues. The coach and the team are school issues. If the kid treats blacks differently at school, then that is a school issue.
It is a difficult distinction, but one that must be made unless the school is to acquire plenary power over everyone.
Only one side made a federal case out of it. She only made a local case out of it. It is the school that escalated it when they didn’t get the judgement that they wanted.
Do you think that she should have given up when she learned that the school was going to appeal?
I repeat myself, but there is something qualitatively different between, in a moment of haste, me going over to a buddy’s house and having six beers and saying “Fuck Dave Jones. He is an asshole” and me purposely posting a picture flipping Dave Jones off with a caption that he can go get fucked, with an audience of two hundred and fifty people knowing that many of those people know Dave and will tell him about it.
What if you say it in a bar, where you know you might be overheard but Dave’s not there, but some asshole secretly records your saying it and sends the video to Dave?
This is a more difficult point, and one that is hard to paint a bright line. What is the current standard for disruption? Is it some sort of “reasonable person” test? Is it up to whether the administration believes it has a high likelihood of causing disruption?
Personally I think the in-school v. out-of-school distinction is rendered meaningless by technology. I can step out for lunch, send a group message to everybody on campus, and then come right back to campus. That is clearly an “on-school” disruption even though when I made the statement I was off campus. The venue for the receiver of the message should matter too.
In this case I think I’d like to see SCOTUS point out that off-campus messages that can be received/read on-campus are still within the purview of the school, but in this particular case the content of the message was not nearly disruptive enough to warrant administrative action.
In the day of snapchat, a post can be made to 250 people in a moment of haste. There is essentially no difference on your part between going to your buddy’s and bitching about Dave and bitching about Dave on snapchat.
The only difference is that someone has to purposely record your bitching in order for it to get back to Dave, while on snapchat, someone can more easily breach your privacy and trust with a screenshot.
I do get that you are repeating yourself, but you are doing so with the same non-compelling argument and irrelevant examples, so repeating it is actually not advancing your position at all.
I do ask, again, since you have repeated yourself with irrelevant examples rather than answering, if someone fails their math test, and they post “Fuck Calculus” to their group of snapchat friends, should they be kicked out of their math class?
And that’s why I would agree that that line should be erased, but the other way around. It shouldn’t matter where it was posted, it should only matter who it was directed at.
If someone posts to their friends to bitch about some school policy or decision, then it shouldn’t matter when it was sent, that should be fine, even if they use foul language. If someone sends a message to an administrator, then that is a different story. If someone sends something to another student that is bullying or hateful, then that shouldn’t be allowed, whether on or off school property, as that’s harassment, and is already illegal.
So, everything on any social media is within the purview of the school?
I don’t know what else to do but agree to disagree. People are responsible for what they do, and if I make a stupid comment to my buddy, I think it won’t leave the room. If I click “Send” to 250 people, I am all but assured it will. In a single moment of haste, I should think about that.
Under this proposition, I could send a email to the coach’s wife and kids, and then be safe in the idea that I didn’t send it to him. Did this girl think that none of her 250 “friends” would send it to the coach? I’m sure she did.
And what if you are wrong? If someone records your comments, and sends them to Dave, do you think that you should be responsible for what you have done? But as long as Dave never finds out, you are off the hook?
If no one had chosen to break this girl’s trust and forward this message on to the coach, does that actually change what she did?
(Keep in mind that Nebraska is a single party consent state, so you should know that anything you say to your friend can get back to Dave.)
You do not see any substantial difference between sending something to your friends, and the family of someone else? The first is venting, the second is harassment.
I was going by your rule. You said it had to be directed to the person. You modified that by including the person’s family. What now about the person’s friends? The same friends who are likely to be your friends on Snapchat. It’s the same thing.
Yes, but within the constraint you identified. What should matter is whether the comment was directed at the school, a student, faculty, or some specific school function (basically what the Solicitor General laid out).
And I agree (I think) with @mhendo that the standard for “disruption” should be rather high.
In this case I believe that the speech is allowed to be considered by the school, since the target of the speech is a function of the school. However, I do not believe it meets the standard of disruption that should warrant action by the school. “Fuck cheer” is not a threat, and it is a statement that a reasonable adult would consider a blowing off of steam by a frustrated child.
The first is venting, the second is harassment.