High school cheerleader reportedly punished for tweeting 'only 10% of Revere votes for mayor cause the other 90% isn't legal'

|The Volokh Conspiracy |

So reports MyFoxBoston.com and the Revere Journal (Seth Daniel). From the Revere Journal:

The situation arose, [cheerleader Caley] Godino said, on Nov. 4, the day after the City Election.

She was on a field trip outside the school building when she and other students got a Tweet from her Civics teacher. The Tweet was to spur thought about the low voter turnout in the City Election—saying only 10 percent of Revere ended up voting, and what the students thought about that. (Turnout was actually about 41 percent in the last City Election, rather than 10 percent).

Godino Tweeted back, "10 percent of Revere voted because the others are not legal."

This apparently led to a lot of controversy, including threats:

One person said they were going to wait for the bus to come back to the field trip; some soccer players said they were going to get their [slur deleted] crew and come for her; others said slurs about white people in Spanish and English.

"Reverse racism is not real," read one Tweet.

"Is it possible to be racist to a white person?" read another.

The administration apparently responded by disciplining Godino: "They gave her social probation, which meant she was off the cheerleading team and couldn't attend or participate in any school events." The superintendent, Dianne Kelly, also said, "One thing that's important to know is when we hear pieces of a story in the news, it's not typically the whole story. I am not at liberty to talk about student discipline or a student's records. What we read is not necessarily the whole story sometimes." The Fox story adds,

Superintendent . . . Kelly says the district believes in freedom of speech, but cannot support what she calls insensitive language.

"If you're going to stand up and say something that other people will find offensive, then you need to be prepare to deal with the ramifications of that," Kelly said.

Here, by the way, are the general First Amendment rules applicable here:

1. The government acting as K-12 educator (i.e., kindergarten through 12th grade) may restrict speech if it

a. "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school," Tinker v. Des Moines Independent Community School Dist. (1969), or

b. "inva[des] . . . the rights of others," Tinker (query what rights these are—the court has never discussed this, and the majority and Justice Alito's concurrence in Morse v. Frederick (2007) described Tinker by reciting only the disruption prong), or

c. is "vulgar and offensive" because of its particular wording and not because of its viewpoint, Bethel School Dist. No. 403 v. Fraser (1986); see also Morse ("[Fraser] should not be read to encompass any speech that could fit under some definition of 'offensive.' After all, much political and religious speech might be perceived as offensive to some."), or

d. "would [be] interpret[ed by a reasonable observer] as advocating illegal drug use and . . . can[not] plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use," Morse (Alito, J., concurring).

2. Under Tinker, mere fear of interference isn't enough; there has to be some specific "reason to anticipate" interference. This is especially so if the restriction seems aimed at a particular viewpoint, though the court has left open the possibility that even viewpoint-based restrictions would be allowed if certain viewpoints were particularly disruptive. Tinker.

3. Lower courts are split about the degree to which this justifies restricting off-campus speech on the grounds that it may cause disruption on-campus. On one hand, if such off-campus speech is indeed as disruptive of campus activity, the logic of Tinker's "OK to restrict disruptive speech" reasoning would seem to apply. But on the other, allowing such restrictions on off-campus speech would mean that schools are controlling student speech 24/7, with no alternative place where students could speak to the public without fear of school retaliation.

4. Fraser seems to generally support the school's power to restrict vulgar speech by its students (consider the statement "[T]he First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket"). But one could also interpret it as being limited to the speech of students who are participating in school-endorsed events (such as students speaking to school assemblies); Justice Alito's Morse concurrence could be read as taking the latter view when it describes Fraser as covering "speech that is delivered in a lewd or vulgar manner as part of a middle school program."

5. The government has extremely broad latitude over speech during class, speech on exams and speech in school-run activities (such as high school newspapers).

6. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), upheld a principal's exclusion of certain articles from a student-written school newspaper; but this generally reflects broad government-as-speaker law, and not special rules related to the government as K-12 educator. The government could, for instance, equally restrict what is published in government agency newsletters, though such newsletters' readers are employees and patrons, not students.

7. The court has never considered whether exclusion of someone from a school team, or from other school social activities, should be treated differently for First Amendment purposes than expulsion or suspension from academic programs.