Student protests could test social media and free speech

On Saturday, the student-led March for Our Lives will draw anti-gun violence advocates and gun controls proponents to Washington. It follows student walkouts at nearly 3,000 public schools across the country last week.

Student demonstrations have received a lot of attention recently, but one little-covered aspect is the movement’s possible impact on social-media free-speech rights.

Public secondary and high schools have well-defined powers, gained through nearly 50 years of court rulings, to limit student free speech with the physical boundaries of a school campus.

But what happens when students criticize school administrators and other students on their own Snapchat, Instagram, Facebook and Twitter accounts outside of school? Or to paraphrase Justice Abe Fortas’ quote from the Supreme Court’s 1969 Tinker decision, do students shed their constitutional rights to freedom of speech on social media beyond the schoolhouse gate?

That’s a question the Supreme Court has yet to consider, and in recent years lower court opinions have varied on the subject. But as social media plays a bigger role in organizing student demonstrations — and criticizing those administrators who oppose them — pressure will build on the courts to draw up specific guidelines that balance school safety issues and student First Amendment rights.

Take the example this week of an Alabama high school student. Oak Grove High School senior Wade Chapman said he was given a two-day in-school suspension for a one-sentence criticism on his Twitter account about the school’s decision to not allow a school walkout. The school district replied that it punished Chapman for “causing a disruption to the learning environment,” possibly in reference to a second Chapman tweet where he mentioned a school official’s concerns about student safety for any outside event. Lawyers for both sides are reportedly discussing the situation.

School officials clearly have a right to take reasonable actions to keep students safe, but how far can they go to do that by monitoring student social media activity? Another controversy this week shows that some student social-media activities touch both the First and Second Amendments.

In Lacey Township, N.J., two students claimed they received five-day in-school suspensions for posting a picture on a personal Snapchat account of a weekend trip to a firearms-training range. The school district said at a public meeting the incident remains under investigation.

These conflicts will continue as our schools grapple with safety concerns and more students mobilize to demonstrate as they did last week. It’s very apparent from reading student interviews that many Walkout Day activities were organized on social media. Social media also is the preferred channel for students disciplined for the walkout to make their cases to the public. But when does student free speech cross into the territory of disputing school and posing safety threats, regardless of where students are physically located?

In recent years, federal courts have ruled on specific scenarios where schools have punished students for the social media comments “outside the schoolhouse gate.” In some cases, the courts said schools had valid reasons. One student’s punishment was upheld for a Facebook post related to a bomb threat; another suspension was upheld for a student who posted rap lyrics on social media about teachers accused of sexual misconduct by other students.

But in some cases, the students have won. A 2015 federal decision in Oregon saw a judge side with a middle schooler who went on a Facebook rant after getting a C from his teacher. And a recent lawsuit in Minnesota led to a victory for the Edina High School Young Conservatives Club, which had faced discipline for criticizing other students online who didn’t stand for a Veterans Day ceremony.

While future students await the outcome of future court cases about these questions, I do have a suggestion about how schools can use current moments like the National School Walkout movement to potentially head off a few lawsuits: spend more time in class talking about core constitutional issues.

For decades, civic education and constitutional literacy have taken a back seat to other public education disciplines across the country. Many folks — including students, teacher, administrators and people in general — just don’t understand basic civics and constitutional concepts.

For example, a 2016 Annenberg Center survey found that only 26 percent of Americans could name three branches of the government, down from 38 percent in 2011. Another 31 percent couldn’t name any of the branches. In my home state of Pennsylvania, state standards require third-grade students to know those concepts.

Last May, the Harvard Political Review looked at some root causes for constitutional illiteracy. One was the lack of tools, time, and money given to public school teachers to do more in classrooms.

Questions related to student free speech are complicated and not even the best, highly tenured university professors have clear answers to some of them. When student free speech happens on social media, the possibilities are endless for more controversies.

It would be in the best interests of all the parties involved here to call a constitutional timeout, to at least agree on the basic concepts of the First Amendment, and to take the time to listen to all sides of the debate on the various issues related to school safety and free speech.

In some cases, this involves adults learning a few lessons from some students who are social-media and constitutionally savvy. These efforts are worth the investment and never more timely than now.

Scott Bomboy is the editor in chief of the National Constitution Center in Philadelphia, the only institution chartered by Congress to “disseminate information about the United States Constitution on a nonpartisan basis in order to increase the awareness and understanding of the Constitution among the American people.”