EFF in the tenth circuit: the first amendment protects the discourse on off-campus social networks of public school students

EFF has filed a brief friend in the United States Court of Appeals for the Tenth Circuit in favor of the right of public school students to speak out outside of class or after school hours, including on social media. We argued that Supreme Court case law made it clear that the First Amendment rarely allows schools to punish students for their off-campus social media speech, including offensive speech.

In that case, C1.G. v. Siegfried, a student and friends visited a thrift store on a Friday night. The student took a photo of his friends wearing wigs and hats, including a hat that looked like a WWII foreign military hat. Intending to be funny, the student posted on Snapchat a photo of his friends with an offensive caption related to violence against Jews (and deleted it a few hours later). The school suspended and ultimately expelled the student.

The EFF brief argued in favor of the expelled student, focusing on the Supreme Court’s strong protection for students’ rights of expression in his decision this summer in Mahanoy v. BL There, the court explained that three “characteristics” of off-campus student discourse diminish a school’s power to regulate student expression. Even more powerfully, “from the perspective of the student speaker, off-campus speech regulations, when combined with on-campus speech regulations, include all speeches made by a student during the full day of speech. 24 hours “. Mahanoy clarifies that the long-standing right of students to express themselves on campus, except in limited circumstances, as recognized by the Supreme Court in its 1969 decision in Tinker v. Monks, is even stronger off campus — and that includes, like the Mahanoy The court said “unpopular expression”.

Our brief also urged the appeals court to reject a special rule for social media. The school argued, and the district court accepted, that the unique nature of the sharing and accessibility of Internet speech – that it can easily find its way onto campus – warrants greater authority over the Internet. school on student discourse on off-campus social networks. Dismissing this argument is especially important given that social media is a central way for young people to express themselves, connect with others and engage in advocacy on issues that matter to them; and takes into account the Supreme Court’s concern over the “24 hour full day” regulations.

In 2018, 95 percent of American teens reported that they have access to a smartphone, and 45% said they use the Internet “almost constantly”. Students and young people are using social media to rally support for political candidates, advocate for racial justice, and organize around issues such as gun control, climate change and, most recently, COVID- 19. For example, when a student at the University of Alabama Zoie Terry became one of the first female students in the United States to be quarantined, her posts about the experience on TikTok led to significant changes in university policy, including the medical monitoring of quarantined students.

Students must have an outlet for their expression, free from the censorious eye of public school officials. We hope the tenth circuit applies Mahanoy appropriately and rescind the student’s expulsion in this case.