The Electronic Frontier Foundation (EFF), a privacy advocate group, has urged the Supreme Court to rule that school officials can’t punish students for things they say and write online when off-campus. The group says to be punished for these things would be a breach of the First Amendment. The request comes amid an unprecedented and troubling amount of student surveillance, including what students are up to off-campus.
The EFF filed a brief alongside the Brennan Center for Justice and the Pennsylvania Center for the First Amendment. The brief highlights a rule established in the 1960s when the Supreme Court ruled that schools should not be allowed to punish students for what they said in their private lives. The rule, when applied to modern times, would include on social media.
The EFF cited the case of Tinker v. Des Moines, when the Supreme Court “carved out a narrow exception to this rule, allowing schools to regulate some kinds of speech on campus only in limited circumstances, given the unique characteristics of the school environment. Interpreting that narrow exception to let schools punish students for speech uttered outside of school would dramatically expand schools’ power to police students’ private lives.”
The case of B.L v. Mahoney Area School District saw a high school student post a selfie to Snapchat after failing to make the cheer team. The selfie included text such as “fuck cheer.” The post was shared outside of school hours and grounds, but one of the students took a screenshot of the image. They sent it to a cheerleading coach who suspended B.L from the J.V squad. The student and their family sued the school in response to the suspension.
In that case, the U.S Court of Appeals for the Third Circuit ruled in favor of free speech. The courts came to a historic decision, holding that the school didn’t have the power to punish a student for off-campus speech, even speech shared on social media that finds its way to the school.
The EFF argues that protecting off-campus speech for students, including things posted to social media, is critical given the essential role the internet plays in modern young life. Not only do students vent their frustrations on social media, as was the case with B.L, but they also use social media to engage with advocacy and politics, from promoting presidential candidates to calling for action against climate change and gun control.
Allowing schools to punish students for what they say on social media would prevent students from interacting and engaging with topics and issues they care about – an outcome that is antithetical to the values of the First Amendment.