FIRE and SPLC File ‘Amici’ Brief Before Minnesota Supreme Court in Important Student Speech Case

By on November 7, 2011

On Friday, FIRE and the Student Press Law Center (SPLC) jointly filed an amici curiae (friends-of-the-court) brief before the Minnesota Supreme Court in Tatro v. University of Minnesota, an important student free speech case.

Amanda Tatro, a mortuary sciences student at the University of Minnesota, faced discipline for off-campus comments she posted on Facebook, which her school labeled as threatening despite their clearly protected and non-threatening nature. Worse, the Minnesota Court of Appeals found (PDF) that her online expression "materially and substantially disrupted the work and discipline of the university," untenably applying the speech standard originally coined by the Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Tinker, as we’ve argued many times before, is applicable to on-campus expression in the high school setting, and should not be used to regulate or punish the off-campus, online speech of an adult college student such as Amanda Tatro.

FIRE’s previous discussion of this case, including the basic facts of the case as well as our analysis of the lower court’s decision, can be found here.

The amici brief filed by FIRE and the SPLC argues that the lower court’s ruling dangerously conflates these very different settings (read FIRE’s legal scholarship for more on the legal basis for these differences) and, if upheld on appeal by the Minnesota Supreme Court, will present a significant threat to college students’ freedom of speech. Our brief also argues that, as a public university bound to the fullest extent by the First Amendment, the University of Minnesota violated Tatro’s free speech rights by punishing her expression. Our brief states, in pertinent part:

The decision below marks a radical departure in First Amendment jurisprudence—one that should not be made without careful consideration of all of the unintended consequences. The notion that registering for a course offered by a public college divests a citizen of the full benefit of the First Amendment for every hour of her waking life, so that there is never a time when she is safe from government retaliation, should alarm us and give us pause. The court below evinced insufficient consideration of the perils of a rule that all forms of off-campus speech—not only postings on social networking sites, but letters to newspapers, speeches at town-hall meetings and interviews with television news stations—are subject to content-based governmental control. It is one thing to lower the bar for speech that a student disseminates within the confines of an elementary or secondary school. It is quite another to say that a government agency may impose a rule against "disruptive" speech by adults in their off-campus lives without having to surmount the gauntlet of strictest scrutiny that the First Amendment demands when the government regulates speech based on content or viewpoint.

Indeed, the stakes involved in this case are very significant. If the Minnesota Supreme Court does not reverse the ruling below, it will send a powerful signal to colleges and universities (not to mention other courts) that college students’ online, off-campus expression can be regulated and punished under a broad standard intended for a very different setting and for a very different type of speech. While the precedent set will be binding only in the state of Minnesota, the case is an important one to follow as the jurisprudence regarding First Amendment rights in the online arena continues to develop. For this and many other reasons, we will be following this case closely. And of course, we will remain on top of developments in the case here on The Torch.

FIRE extends its sincere gratitude to the SPLC for allowing us to participate and to attorney Thomas C. Gallagher for representing us in this filing.