Supreme Court Will Not Review Online Student Speech Cases

January 17, 2012

This morning, the Supreme Court of the United States declined to review three cases involving the off-campus, online speech rights of students at public K-12 schools: Blue Mountain School District v. J.S., Layshock v. Hermitage School District, and Kowalski v. Berkeley County Schools. Stephen Wermiel of SCOTUSBlog provided a helpful summary of what review might have meant earlier this month.

As FIRE staffers have previously discussed here on The Torch, J.S. and Layshock represented significant victories for the First Amendment. In both cases, the United States Court of Appeals for the Third Circuit held that school officials cannot discipline pupils for vulgar, lewd, or offensive speech posted on the Internet while the speaker is off school grounds. In Kowalski, by contrast, the United States Court of Appeals for the Fourth Circuit dealt a significant blow to student rights by upholding the school’s disciplinary sanctions for off-campus, online speech. 

While public grade school and high school students do not enjoy the full protection of the First Amendment in the way that their public college counterparts do, these cases are nevertheless important for First Amendment rights in higher education because of the unfortunate tendency of many courts to import the legal standards governing high school restrictions on student speech into the higher education context. The different outcomes reached by the Third and Fourth Circuits suggested that the Court might decide to resolve the conflict by taking on one or all of the cases. 

As David Hudson, Jr. of the First Amendment Center explained this afternoon, the Supreme Court’s decision to decline review of the conflicting circuit decisions means many important questions remain unanswered:

  • Do school officials even have jurisdiction over purely off-campus expression?
  • What is enough of a connection between an off-campus, online posting and school activities to trigger school jurisdiction?
  • When does off-campus, online student speech create a reasonable forecast of substantial disruption of school activities?
  • Can school officials discipline off-campus, online student speech because it invades the rights of other students?
  • Can school officials discipline students for off-campus, online speech simply because it contains vulgar and lewd language?

While FIRE is disappointed that the Court did not choose to rectify the Fourth Circuit’s errors in Kowalski, the Court’s decision to not review the cases at all may have been for the best. As Frank LoMonte, executive director of the Student Press Law Center, noted in Hudson’s article: 

 "It has been very, very difficult for courts to set aside their revulsion over the specific speech in front of them and see beyond that to the larger constitutional issue," he said.

"Just as the Court made an ill-considered First Amendment ruling in the Morse [Morse v. Frederick (2007)] case out of sympathy for the particular school administrator, I think the temptation would have been irresistible to do violence to the First Amendment so that the students in these cases didn’t escape unpunished. The speech by these students was in no way representative of the creative and substantive ways in which student bloggers, journalists and artists are using the Web every day, but those students’ rights could have suffered real and permanent damage had the Court taken up these cases."

Hopefully, the Court will act soon to establish a national standard that protects student speech rights. With conflicting appellate opinions in place, a K-12 student’s First Amendment rights to speech on the Internet now unfortunately depend on where he or she happens to go to school.