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Note to School Officials: Be Wary of Punishing Students for Online Speech

David L. Hudson, Jr. is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law. He is the author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools.

HudsonSchool officials need to be wary when punishing students for inappropriate off-campus, online speech or forcing students to disclose social-media passwords. Such conduct could violate students’ First Amendment right to free speech and Fourth Amendment right to be free from unreasonable searches and seizures.

That appears to be the lesson from a recent federal court decision in Minnesota. Earlier this month, a federal judge refused to dismiss a lawsuit arising from a middle school’s punishment of an eighth-grader for her Facebook posts.

In early 2011, a student at Minnewaska Area Middle School known in court papers as “R.S.” got mad at a school monitor and posted on Facebook that she “hated” the school monitor. After receiving a detention and being forced to apologize to the monitor, the student posted a second message containing profanity and inquiring who told school administrators about her initial post. She was subsequently punished for this post.

Later, in March 2011, school officials learned that R.S. apparently had engaged in sex talk that was initiated by a boy in her class. According to R.S., school officials, including a school resource officer, took her out of class and forced her to disclose her Facebook username and password and then read her public postings and private messages.

R.S. then sued in federal court, contending that school officials violated her First Amendment free-speech rights by punishing her for her off-campus, online postings. She also alleged that school officials violated her Fourth Amendment right to be free from unreasonable searches and seizures when they forced her to disclose her passwords and then searched her online content.

The school defendants filed a motion to dismiss the lawsuit. On Sept. 6, U.S. District Judge Michael J. Davis denied the defendants’ motion with respect to the First and Fourth Amendment claims in R.S. v. Minnewaska Area School District.

On the First Amendment claim, Davis ruled that public school officials can punish students for off-campus, online speech only if the speech constitutes a true threat or “pose[s] a substantial disruptive effect.” The judge characterized R.S.’s statements about the school monitor as merely “inappropriate” and a far cry from a true threat or speech that caused a substantial disruption.

Even more significant perhaps to the ultimate outcome of the case, Davis ruled that there is “clearly established” law that school officials cannot punish students merely for “inappropriate” online speech. This finding caused Davis to deny the defendants’ request for qualified immunity, a defense available for government officials if they don’t violate clearly established law.

On the Fourth Amendment claim, Davis emphasized that R.S. “had a reasonable expectation of privacy to her private Facebook information and messages.” He also reasoned that this principle was clearly established law.

Davis stressed, however, that “this case is still in its infancy” and that the school officials “may reveal facts which change the Court’s analysis of the school defendants’ qualified immunity claims or of the ultimate merits of [R.S.’s] claims.”