Education Week reports that yesterday the United States Court of Appeals for the Eighth Circuit overturned a district court decision enjoining a Missouri school district from punishing two brothers for their online speech. The brothers are represented in the case by the American Civil Liberties Union (ACLU) Foundation of Kansas and Western Missouri and the ACLU of Eastern Missouri. Education Week summarizes:
The case involves twin brothers Sean and Steven Wilson, who created a web site called NorthPress in December 2011 that contained a blog meant to discuss, satirize, and "vent" about events at Lee’s Summit North High, court papers say. The 8th Circuit characterized the blog as containing several racist and sexist comments, including sexist remarks about female students at the high school. The blog posts were evidently created by the Wilson brothers, though a separate racist comment was allegedly posted by a third student. (Unfortunately, the 8th Circuit’s opinion does not give any further specifics about the blog’s content.)
As we at FIRE have written before, the First Amendment limits on school regulation of off-campus speech is an unsettled issue. Essentially, the question turns on whether the controlling United States Supreme Court decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) applies outside the four corners of the school. On this point, United States Circuit Courts of Appeal are split. Some hold that schools can punish off-campus speech that is directed at schools and causes "substantial disruption" to school activities. Others hold that schools cannot do so. Others still hold that schools can punish any speech that causes substantial disruption on campus, whether directed at school or not.
Given the circuit split, one might plausibly think that the Wilsons could and should appeal. However, the Supreme Court chose not to address this very issue by refusing to grant certiorari in a trio of cases early this year. The previous cases, each involving Myspace pages mocking students or administrators but generally with no other connection to school grounds, would have allowed the Supreme Court to adjudicate the First Amendment issue, yet the justices refused to weigh in. As a result the high court would likely refuse to hear the Wilsons’ case.
As it stands, however, the facts in yesterday’s case may prove problematic for an appeal. Unlike in the cases from 2011, the Eighth Circuit notes that teachers at the Wilsons’ school had "difficulty managing their classes" due to the speech in question. Further, the Wilsons used a school computer to upload files necessary to create the offending website. Finally, the Eighth Circuit noted that "the location from which the Wilsons spoke may be less important than the District Court’s finding that the posts were directed at Lee’s Summit North."
This last point places the Eighth Circuit squarely in the camp of courts that have applied Tinker to off-campus speech, with the only limiting principle being that such speech must be "targeted" at campus. While this reins in what speech school officials in the Eighth Circuit can punish (they can’t, for example, punish a personal diary of a student that is discovered by a third party and brought to school, no matter how offensive the contents), the test is unlimited in other regards. As the concurrence in the Third Circuit case of J.S. v. Blue Mountain suggests, 650 F.3d 915, 940 (3rd Cir. 2011), the limitation of "directedness" may prove to be no limitation at all: "[I]f Tinker were applied to off-campus speech, there would be little reason to prevent school officials from regulating adult speech uttered in the community … the absurdity stems not from applying Tinker to off-campus speech uttered by adults and students alike, but from the antecedent step of extending Tinker beyond the public-school setting to which it is so firmly moored."
This is exactly right, and the irony is that while in Tinker the Supreme Court noted that students do not shed their rights at the schoolhouse gate, some circuits choose to treat the entire nation as school grounds subject to speech restrictions. The unfortunate circuit split in this area of law leaves students with vastly disparate First Amendment protections across the country. Unfortunately for the Wilsons, it looks as if their First Amendment rights are not going to be vindicated by the courts. They still have the opportunity to have the Eighth Circuit review their case en banc, but that is not likely.