Students & Free Speech: Where to Draw the Line?

In last month’s newsletter, I discussed an uptick in cyberbullying, most particularly that reported by girls. We are currently in a time in our history when school violence is becoming a common occurrence. Bullying and harassment and hate speech and threats (whether in person or online) can sometimes be a precursor. Schools are increasingly faced with having to determine what types of student speech on social media can and cannot be restricted, and what may or may not subject a student to disciplinary action. If the school is wrong, or if an affected party perceives a wrong, litigation is likely to follow.

Although the issue is far from being settled, there are a few general principles which may be applied. First, students do have a right to free speech in the school setting. What they may not do, and what a school may restrict, are things that substantially disrupt the operations of the school, and/or which interfere with the rights of others. Examples of this in the social media setting would be posts threatening violence against an individual or particular group.

Courts have recently upheld disciplinary action against students who post “hit lists” naming students, or who depict themselves with weapons and ammunition in the course of making threatening comments. A Connecticut Supreme Court decision, released this past July, illustrates the analysis undertaken by that Court to determine whether the student’s conduct was a “true threat”. 

In light of the current climate, behaviors or “speech” that in the past might not have been taken seriously, are now being given much more attention. Because of the very real potential for danger to students and staff, school personnel must constantly assess any red flags they receive. The challenge is achieving a balance between maintaining safety and order while not unduly restricting First Amendment rights.