Ken Paulson: Court finds Mo. students’ off-campus posts not protected

  The 8th U.S. Circuit Court of Appeals has found that students who built a website with provocative content are not protected by the First Amendment and can be punished for their postings.

  A three-judge panel found that the students’ site contained sexist and racist comments that led to disruptive behavior at their high school in Lee’s Summit, Mo.

  Steven and Sean Wilson created a website called NorthPress in 2011, offering commentary about Lee’s Summit North High School. Though they claimed the site was intended to be viewed by just a handful of friends, word spread, and the boys were suspended.

  In 1969, the U.S. Supreme Court found in Tinker v. Des Moines Independent Community School District that though students have free speech rights in public schools, there is no protection for speech that could potentially cause a “substantial disruption.”

  The Wilsons’ case is noteworthy because it involves off-campus speech. The appellate court concluded that the Tinker guidelines applied because the brothers intended that NorthPress be read by students. In concluding that the Wilsons could be punished, Judge Michael Malloy noted “the location from which the Wilsons spoke may be less important than the district court’s finding; that the posts were directed at Lee Summit North.”

  Other federal courts have grappled with similar issues. In decisions concerning off-campus speech in the 2nd and 4th circuits, courts found sufficient disruption to rule in favor of public schools. A 3rd Circuit case found in favor of a student because there was no evidence of substantial disruption.

  It was little surprise, then, that the 8th Circuit also based its decision on a finding of substantial disruption. In fact, two teachers had testified that the posts had created the most disruptive day they had ever seen in their teaching careers. A court will give that kind of testimony significant weight.

  But in an age when social media and digital distribution are key elements of news reporting, such situations raise the question of whether a student journalist could be punished for posting accurate negative reports about his public school.

  How about a highly critical but civilly worded critique of a principal? What about an accurate report about a teacher’s inappropriate off-campus conduct? The content would be directed at a school and would certainly create a potentially disruptive buzz, but that kind of reporting would also be consistent with a free press’ role in monitoring public officials. Current case law suggests that the student could nonetheless be punished.

  So often these cases set a low bar for “substantial disruption.” These cases almost never involve violence, just concerns about an overly loud or distracted student body. Similarly, analyses of the offending student speech zero in on the profane or insulting, with very little consideration of the publication as a whole.

  Punishing citizens — including high school students — for their free speech is not a minor matter. Student speech can be unsettling, irritating and offensive, but it is also presumptively free.

  About the author: Ken Paulson  is president and chief executive officer of the First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.

  This article was published by the First Amendment Center.