EFF to Tenth Circuit: First Amendment Protects Public School Students’ Off-Campus Social Media Speech

EFF filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit in support of public school students’ right to speak while off school grounds or after school hours, including on social media. We argued that Supreme Court precedent makes clear that the First Amendment rarely allows schools to punish students for their off-campus social media speech—including offensive speech.

In this case, C1.G. v. Siegfried, a student and some friends visited a thrift shop on a Friday night. The student took a picture of his friends wearing wigs and hats, including one hat that looked like a foreign military hat from World War II. Intending to be funny, the student posted a picture of his friends with an offensive caption related to violence against Jews to Snapchat (and deleted it a few hours later). The school suspended and eventually expelled the student.

EFF’s brief argued in favor of the expelled student, focusing on the Supreme Court’s strong protection for student speech rights in its decision from this summer in Mahanoy v. B.L. There, the Court explained that three “features” of students’ off-campus speech diminish a school’s authority to regulate student expression. Most powerfully, “from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.” Mahanoy makes clear that students’ longstanding right to speak on campus except in narrow circumstances, as recognized by the Supreme Court in its 1969 decision in Tinker v. Des Moines, is even stronger off campus—and that includes, as the Mahanoy Court said, “unpopular expression.”

Our brief also urged the appellate court to reject a special rule for social media. The school argued, and the district court agreed, that the uniquely shareable and accessible nature of speech on the internet—that it can easily make its way onto campus—justifies greater school authority over students’ off-campus social media speech. Rejecting this argument is particularly important given that social media is a central means for young people to express themselves, connect with others, and engage in advocacy on issues they care about; and heeds the Supreme Court’s concern about “full 24-hour day” speech regulations.

As of 2018, 95 percent of U.S. teenagers reported that they have access to a smartphone, and 45 percent said that they use the internet “almost constantly.” Students and young people use social media to rally support for political candidates, advocate for racial justice, and organize around issues like gun control, climate change, and more recently COVID-19. For example, when University of Alabama student Zoie Terry became one of the first students in the U.S. to be quarantined, her posts about the experience on TikTok led to important changes in university policies, including medical monitoring of quarantined students.

Students must have an outlet for their expression, free from the censorial eye of public school officials. We hope the Tenth Circuit applies Mahanoy appropriately and overturns the student’s expulsion in this case.