Americans Don't Want Schools To Punish Off-Campus Speech

Only students support extending the power to penalize speech, raising concerns about what they’re learning in school.

As the U.S. Supreme Court considers the limits of public schools' authority to penalize speech made outside the walls of the country's faltering government-run institutions of occasional learning, polling says most people want to leave kids free to speak their minds. Only one-in-four adults would let schools punish students for their online comments. A damning indictment of public education might be found in the single group to voice majority support for extracurricular censorship: children being taught in those schools.

"Just one-quarter of Americans (25%) believe that public schools should be allowed to punish students for what they say online, outside of school," The Economist/YouGov reported last week of polling results. "About half (52%) say that schools should not be allowed to punish students for this, and 23% are not sure."

Americans were asked their opinions on the issue as the Supreme Court mulls oral arguments over punishment meted out by a Pennsylvania public high school to Brandi Levy for comments she made online in 2017, as reported by Reason's Damon Root. Then a junior varsity cheerleader who failed to make the varsity squad, she vented her disappointment on Snapchat with a photo of herself and her friend flipping the bird, captioned "Fuck school fuck softball fuck cheer fuck everything." Her coach suspended Levy from the team for a year for the post. Levy and her family sued and are represented by American Civil Liberties Union (ACLU) lawyer David Cole.

Under the standard set in 1969 in Tinker v. Des Moines Independent Community School District, public school students enjoy First Amendment protection for their free speech rights while they are on campus unless the speech "would materially and substantially interfere with the requirements of appropriate discipline and in the operation of the school." Until recent years it was unusual for schools to try to regulate what students say on weekends and when they are otherwise off school grounds. Now, though, the Internet and especially social media have amplified the reach of everybody's jibes, jokes, and manifestos. And those inclined towards control are scrambling to punish comments once considered beyond their reach.

"[T]he school district is asking the Supreme Court to essentially decide that all students' speech, no matter when and where it occurs, is now to be regarded as on campus speech because of its ability to reach and affect the school," Frank LoMonte, Director of the Brechner Center for Freedom of Information at the University of Florida, commented during a Foundation for Individual Rights in Education podcast.

Concerns about allegedly unacceptable off-campus speech are often framed in the context of "cyberbullying"—especially when directed at school employees. That has led to a flurry of disciplinary actions and specific laws that sometimes even allow for criminal penalties.

"School children have always criticized and made fun of their teachers and administrators, and no one thought that should be a crime until they started using the Internet to do it," the Pennsylvania ACLU's Mary Catherine Roper warned Reason about such efforts in 2012.

While lower courts are divided over the issue, the closest the Supreme Court has come to deciding the off-campus reach of school speech policies was in Morse v. Frederick (2007) when it said Alaska's Juneau-Douglas High School didn't violate the First Amendment by punishing a student for holding up a "Bong Hits 4 Jesus" banner during the Olympic Torch Relay. But the court emphasized that students attended the event as part of a school-supervised activity. Brandi Levy was online on a Saturday when school was closed; allowing her punishment would be a significant extension of school officials' authority.

"If the Court adopts the school district's argument, individuals who attend American public schools will never have the same First Amendment protection as everyone else," warns the Student Press Law Center. "Speech that would be protected if they weren't students would be subject to punishment by school officials who weakly claim — as the cheerleading coach in this case did — that their speech disrupted the school."

The public seems to share the Center's concerns, as the results of polling by The Economist/YouGov demonstrate. About 52 percent of adults oppose letting public schools punish students for online speech, an opinion held by 64 percent of independents and 63 percent of Republicans. Democrats are more divided, with 38 percent opposing such extended authority for schools and 37 percent supporting it. Perhaps reflecting trust in the people to which they've handed responsibility for their kids' education, just 37 percent of parents of school-age children oppose punishment for off-campus speech, but still only 45 percent support it.

Disturbingly, the only group with a majority favoring punishment for off-campus speech are the kids who would be subject to such power. "Most full-time or part-time students (54%) say that it is appropriate for public schools to enforce punishments for their speech online while outside the classroom," notes The Economist/YouGov. About 31 percent oppose such penalties.

You have to wonder just what public school students are learning about individual liberty and the limits of authority. Apparently, they're not being taught to value and protect their free speech rights. One likely lesson in the results (as if we needed a refresher) is that, when given the chance, government officials will instruct their charges that government officials should have more power. 

Over the past year, as public schools have dropped the ball in their responses to pandemic concerns, families have turned in droves to alternatives such as homeschooling, private schools, and charter schools. Parents and students pick these options based on their effectiveness and their responsiveness to individual needs and preferences. If public schools are going to demand the power to regulate students' lives in the wide world beyond schoolhouse doors, that's just one more reason to look elsewhere for a good education as well as for respect for the boundaries needed to maintain a free society.

The Supreme Court is expected to issue a decision in Brandi Levy's case in late June. Families don't have to wait until then to decide how and what their children will learn.