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Another Win for Student Free Speech

The Commonwealth Court of Pennsylvania last week overturned the suspension of a student who posted violent song lyrics on his Snapchat account. The student was not on campus at the time, and he posted the lyrics from Snap! by the death metal band Spite. He did not identify the post as being from a song and included the promise to “kill off all of you.” The predictable uproar ensued, complete with a police investigation, criminal charges for terroristic threats, time spent in juvenile detention, and a psychological evaluation that determined that he posed no risk to the school. His juvenile conviction on that charge eventually was overturned.

Meanwhile, back at the school, authorities suspended the student and eventually expelled him for the post. The hearing officer who recommended expulsion punted on the question of whether the song lyrics constituted a true threat, but simply decided that the resulting disruption to the school justified the penalty.  

The Pennsylvania court disagreed, noting that it is “understandable” that the school would need to suspend the student while figuring out the facts and assessing the threat. However, the court stated that a school cannot penalize off-campus speech “unless there is a strong nexus between a given student’s expressive conduct and their school, such that when properly contextualized, the offending speech is shown to have been clearly targeted at a member or members of their school community or clearly pertained to school activities.” The court found that the school had not successfully rebutted the evidence that the language was only song lyrics, as well as the student’s testimony and professional opinions that he intended no harm.

The school instead argued that “the plain wording of G.S.’ post, coupled with the public’s reaction thereto and the criminal charges that were lodged against him, ipso facto established that he had intended to harm members of the School District community.” The court found this formulation deeply troubling, in that it would elevate the community response to the speech above the context and intent of the speaker. Such a formulation would 

imbue public schools with the power to discipline their students for publically expressing interests or sentiments that school administrators, faculty, or members of polite society considered execrable or simply did not understand, regardless of how, when, where, or why that expressive conduct occurred. Public schools would consequently become de facto full-time censors, preventing children from making their own decisions about what aspects of popular culture are worthy of consumption or what beliefs should be held, and interfering with parental authority, through a constant potential for punishment that would hang over students like the Sword of Damocles.

There are important lessons in this opinion for public and private schools to learn from the principles that it sets out. Constitutional law long has refused to let the “heckler’s veto” govern free speech rights, and that analysis should apply just as forcefully to school environments. Order is important, but administrators should not elevate order above the right of students to express themselves. The unintended consequences of speech should not, and in public schools cannot, be grounds for penalizing that speech.

It also in important to note that courts continue to carve out a wide exception for speech occurring on school property or directed at fellow students or school activities. So far, the exception is dicta because none of the cases has involved that fact situation. Nevertheless, all courts are sending a clear signal that speech fitting within those exceptions faces a different analysis and likely warrants more control from schools.

Public schools may certainly take appropriate, good faith steps to protect their communities in fluid situations where it is unclear whether a student’s off-campus speech indicates genuinely harmful intent, as neither the First Amendment nor Article I, Section 7 require that they sit on their proverbial hands until a potential threat comes into actual fruition. However, where a student’s properly contextualized, off-campus speech is not distinctly connected to school activities or clearly directed towards members of their educational community, a public school’s reach exceeds its constitutional grasp if it seeks to punish that student for any disruption to normal school operations that results from that speech.

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youth services law, first amendment, free speech, schools, ausburn_deborah, insights