Students have more of an ability to participate in free speech now than ever because of social media. Consequently, the right to do so via online posting is more at stake, and slight missteps can land you in immense trouble.

In Tinker v. Des Moines Independent Community School District (1969), the U.S. Supreme Court ruled in their majority decision that students don't “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Over the last half-century, courts have identified the types of speech and online posts that can and cannot get you into trouble.

Protected Speech

• Political speech—Insofar as public schools are concerned, employees of the school (in most cases) are government employees. Speech critical of the government is protected political speech.
• Profane, vulgar, and lewd speech—Not only is the intellectual content of speech protected, but the emotive content is also protected.
• Rhetorical hyperbole—Exaggerated, over-the-top parody statements are separate from “true threats” in that there is no intent to commit an act of unlawful violence.

Speech That Can Get You Into Trouble

• Statements or online posts that disrupt the learning environment, even if they are political speech, profane, or hyperbole
• Threats of violence against a named person or group
• Speech that promotes bullying or harassing
• Violations of a school's code of conduct

There are differences between the guidelines and punishments of online posting from public schools versus private institutions. For example, a private college or university has more leeway in alleging misconduct in online speech since it is not bound to the same degree of due process under the United States Constitution as would be the case with public institutions, may not receive federal funding, and so forth. Independent of these important considerations, it's essential to consult your school's code of conduct and policy on social media. Many times, the difference between protected speech and misconduct can be answered by asking these questions:

• When was the online post created or engaged? Was it during school hours?
• Where was the online post created or engaged? Was it on school property, school equipment, or an off-campus school event?
• Does the online post identify the school or target any individuals?
• Was “substantial disruption” caused by the online post?

In Mahanoy Area School District v. B.L. (2021), the U.S. Supreme Court ruled that a high school violated a cheerleader's First Amendment rights by suspending her for an “inappropriate” video posted to Snapchat. Since the video was neither made on school grounds nor during school hours, didn't target any individuals, and didn't cause substantial disruption in school, the cheerleader was found not to have violated the school's conduct policy.

If You Violate a School's Online Posting Policy

If you're a student facing a misconduct allegation from online posting, a suspension is typically the minimum punishment. A worst-case scenario could mean expulsion from the school. If that occurs, you'll have to detail previous expulsions to colleges and universities to gain admission, which can lower your chance for admittance.  A finding of responsibility and any consequent sanction can close doors to future opportunities, however, regardless if a student is in high school or college.

A Student Defense Attorney Can Help

The differences in governance of online posting between public and private colleges can be complex. Joseph D. Lento is an expert attorney-advisor that knows the intricacies of the system and has helped hundreds of students across the country defeat misconduct allegations. Call 888-535-3686 today to understand how the Lento Law Firm can help you.