This post was principally authored by Andrew M. Pauwels, a student at the University of Notre Dame Law School and a 2013 summer associate at Honigman Miller Schwartz and Cohn LLP.
Facebook was invented for college students by college students, and despite the increased use of Facebook and other social media sites by the general public, college students remain important users of this technology. Facebook and social media are central to communication of social, political, religious, and cultural events on campus. These sites also provide a forum for the expressing and sharing of viewpoints and opinions. Just as in the primary and secondary school settings, Facebook usage can lead to student discipline.
Absent truly threatening words (considered below), the courts have struggled to determine exactly what standard governs the online speech of students. Universities are generally given a great deal of discretion by the courts to make determinations on academic issues. Student discipline is not always an academic issue, however, and the courts do not owe deference to university leadership when considering the constitutional limits on university action. These issues are often complicated by university codes of conduct, which create contractual relationships which may limit student speech rights.
A. Discipline for Non-Threatening Posts
Obtaining permission to post photographs or comments has been an effective means for students to protect themselves from discipline for those posts. In Byrnes v. Johnson County Community College, a 2011 federal case from the District of Kansas, Doyle Byrnes and others were dismissed from the Nursing School at Johnson County Community College (JCCC) for photos they posted on Facebook. At a clinical course on obstetrics and gynecology, the students took pictures of themselves with a placenta they were examining. The instructor granted permission to take the photos, and in response to the girls’ statements that they would post them on Facebook, she said “Oh, you girls.” No identifying marks were present on or near the placenta, meaning that patient privacy was not compromised by the pictures.
The JCCC administration did not assert that any schoolwide or program specific code of conduct had been violated; instead, they argued that the post violated the “sense of propriety” of school officials. The court found this to be “unclear, unpublished, and unfair to require students to comply with.” In addition, the court found that permission had been granted by the Nursing School instructor to take and post the photos. “Photos,” the court stated, “are taken to be viewed. . . . By giving the students permission to take the photos, which [the instructor] admitted, it was reasonable to anticipate that the photos would be shown to others.” The court ordered Byrnes be reinstated to the Nursing Program at JCCC.
In contrast, when specific school or program rules—as opposed to administration norms of “decency”—are violated by an online posting, courts have upheld university discipline, although the standard by which courts will review such decisions is far from set in stone. In Tatro v. University of Minnesota, Amanda Tatro, a student in the Mortuary Science Program at Minnesota, was sanctioned by the university for a series of Facebook posts she made in late 2009. The laboratory class rules permitted “respectful and discreet . . . conversational language of cadaver dissection outside the laboratory” but absolutely banned blogging about the course, which the students were told included posting to Facebook and other social media sites. Punishment for violating the course rules included removal from the course.
Tatro posted four times in November and December about her experience with “Bernie,” the cadaver on which she was training. One post referred to getting to “play” with Bernie; others referred to Tatro having “lots of aggression to be taken out with a trocar” and “want[ing] to stab a certain someone in the throat with a trocar.” (NOTE: A trocar is a tool used in the embalming process.) Several staff members reported feeling unsafe as a result of these posts. Discipline proceedings were initiated against Tatro, who claimed to not understand that her posts were within the scope of the ban on blogging. The conclusion of the university proceedings led to Tatro being given a failing grade in the course, among other penalties.
In 2011, the Court of Appeals of Minnesota upheld the university’s decision applying the Tinker “substantial disruption” framework. In 2012, yhe Supreme Court of Minnesota affirmed, but on different grounds. Tinker, the high court stated, was inappropriate for the punishment the school handed down, which focused on professional conduct, not disruption. Instead, the court “consider[ed] the special characteristics of the academic environment of the Mortuary Science Program and its professional requirements” to determine the proper analysis. The court articulated the following legal rule to govern such discipline: “a university may regulate student speech on Facebook that violates established professional conduct standards…with the qualification that any restrictions on a student’s Facebook posts must be narrowly tailored and directly related to established professional conduct standards.” The policy and discipline fit this standard, the court held, so Tatro’s sanctions were upheld.
Professional lab courses seem to be a common source of First Amendment conflict. In Yoder v. University of Louisville, Nina Yoder, a nursing student, was dismissed from the university for posts she made on her MySpace page. After observing a live birth for a childbearing class, Yoder wrote a long blog post describing the birth in what the Sixth Circuit referred to as “a less-than-flattering tone.” The university cited the nursing Honor Code and patient confidentiality as grounds for dismissal. Rather than exhaust her remedies at the university, Yoder filed suit in federal court, claiming, under 42 U.S.C. § 1983, that the university and several administrators had violated her First Amendment right to free speech and her Fourteenth Amendment right to due process.
In a 2009 decision, the District Court for the Western District of Kentucky ordered Yoder reinstated as a student, ruling on breach of contract grounds. The court held that the post could not be used to identify the woman giving birth, and therefore did not amount to a breach of patient confidentiality under the Honor Code. Similarly, the court found that Yoder’s post did not violate the “professionalism” requirement, despite being “a crude attempt . . . to be humorous;” because the post was “non-professional” rather than as a representative of the school, Yoder had not violated the policy.
The Sixth Circuit, however, reversed and remanded the district court decision in 2011. The circuit court ruled that Yoder did not allege any breach of contract, and thus the district court could not award Yoder reinstatement on these grounds. The case was remanded for the lower court to address directly the free speech and due process claims. The district court, in March of 2012, this time upheld the dismissal. As to Yoder’s First Amendment claims, the court ruled that, by signing a consent agreement to participate in the course, Yoder agreed to only communicate with the professor regarding the live birth. The posts on MySpace were outside the scope of the agreement and therefore were not constitutionally protected. The Sixth Circuit recently affirmed.
B. True Threats
Much like in the high school context, true threats of violence receive minimal First Amendment protection. Two recent cases, both involving student posts shortly after the tragedy at Virginia Tech, shed light on the contours of the analytical framework applied.
In United States v. Voneida, a case decided in 2009, the Third Circuit upheld the criminal conviction of Steven Voneida, a student at the Harrisburg campus of Penn State. Just days after the Virginia Tech shootings, Voneida posted on his MySpace page a series of statements and pictures expressing desires or intentions to commit similar attacks and glorifying the acts of the shooter. Students on campus and at another school, all of whom were MySpace “buddies” with Voneida reported the posts to the police, expressing fear for students on campus.
Voneida was charged and convicted of transmitting a threatening communication, a federal offense. The Third Circuit found that the unique context of the Virginia Tech shooting and the comments—in particular, “I’ll make the Virginia Tech incident look like a trip to an amusement park”—amounted to “a serious intention to inflict bodily harm.” The Court also held that the postings satisfied the “transmitted in interstate commerce” element of the law at issue and could not be classified as a diary-like entry: “For other MySpace users to view the statements…the postings had to pass through the main internet server, located in California.” In addition, notifications of the posts were transmitted to Voneida’s “buddies” and comments from these “buddies” were permitted on the page, facts which distinguished the posts from a personal diary.
In order for the state (or the state acting through a university) to take action against a student for threatening posts, the threats must be actual threats. In Barnes v. Zaccari, a 2012 case from the Eleventh Circuit, Ronald Zaccari, President of Valdosta State University, expelled Thomas Barnes from the university in response to flyers and Facebook posts made by Barnes. Barnes organized a student campaign in protest of the construction on campus of a new parking deck. As part of this campaign, Barnes emailed Zaccari frequently about his views on the environment, proposing alternatives to the garage; Barnes and Zaccari even met on April 16 (the same day as the Virginia Tech massacre) to discuss Barnes’s protest. While this was ongoing, Zaccari monitored Barnes’s Facebook page.
Shortly after the events at Virginia Tech, Zaccari came across several Facebook posts by Barnes which caused him concern: a collage entitled “S.A.V.E. — Zaccari Memorial Parking Garage;” a post about cleaning up his mind; and a link to an article about coping with mental illness after the Virginia Tech tragedy. Zaccari proactively sought justifications for removing Barnes from the university, even going so far as blaming the tripping of his home alarm on Barnes. Despite a lack of evidence to tie Barnes to this incident, Barnes’s satisfactory academic performance, and repeated reports by mental health professionals that Barnes posed no threat to the campus community, Barnes was expelled without notice or hearing. Barnes requested a hearing with the Board of Regents, which was never granted. Barnes filed suit against Zaccari and the Board, after which he was reinstated.
Zaccari moved for summary judgment on the grounds that he was entitled to qualified immunity. In order to rebut a claim of qualified immunity, the plaintiff must demonstrate that the state official violated a constitutional right and that the right was clearly established at the time of the violation. The Eleventh Circuit found that Barnes was entitled under Georgia law to continued enrollment, a right meriting Due Process protection: “[N]o tenet of constitutional law is more clearly established than the rule that a property interest in continued enrollment in a state school is an important entitlement protected by the Due Process Clause.” The state was required to provide notice and some sort of hearing. Threats may amount to an actual or reasonably perceived emergency, in which case process is not required. The Court found that Barnes’s behavior, including the Facebook posts, did not necessarily indicate an intention to harm anyone, and that an objectively reasonable person would not have found Barnes presented a threat to safety; therefore, no emergency existed. The court also found that the right was clearly established at the time: a reasonable university president would have known that the action was unlawful. The code clearly established that expulsion required cause and process. The case was remanded to proceed on the merits of Barnes’s claims against Zaccari. (NOTE: the claims against the Board were dismissed on Eleventh Amendment immunity grounds.)
C. Social Media and the Associational Rights of Students
In 2010, the Supreme Court addressed the issue of the associational rights of college students, and student access to social media played a role in the majority’s decision. In Christian Legal Society of the University of California, Hastings College of the Law v. Martinez, the Court upheld the “all-comers policy” which the Hastings College of Law has in place to govern the formal recognition of “Registered Student Organizations” (RSOs). In order to become an RSO—bringing with it many benefits, including of use of school funds, facilities, communication channels, and the university name and logo—a student organization “must allow any student to participate, become a member, or seek leadership positions, regardless of her status or beliefs.” The Christian Legal Society (CLS) bylaws bar homosexuals or anyone with religious beliefs at odds with the Statement of Faith from membership; Hastings denied CLS status as an RSO due to this exclusionary policy. CLS filed suit, partially on the grounds that Hastings had violated their First Amendment right to expressive association.
The Court upheld the all-comers policy as a reasonable, viewpoint-neutral restriction. Important to this determination was CLS’s access to social media. Despite losing access to official university channels, “the advent of electronic media and social-net-working sites reduces the importance of those channels.” The Court saw a history of private organizations—“from fraternities and sororities to social clubs and secret societies”—having strong campus presences without official recognition; CLS, like these organizations, had established a strong presence without access to official resources. Justice Alito, writing in dissent, was highly critical of this emphasis on social media, saying that the majority had “brush[ed] aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad.”
Relying on the decision in Christian Legal Society, the Ninth Circuit upheld a similar but narrower policy in Alpha Delta Chi-Delta Chapter v. Reed in 20011. San Diego State University denies official status to student organizations which restrict membership or participation “on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition.” The challengers, Alpha Delta Chi and Alpha Gamma Omega, are a Christian sorority and fraternity, each of which require acceptance of various religious tenets to be a member. Citing Christian Legal Society, the Ninth Circuit found that “access to all the non-university electronic channels mentioned by the Supreme Court, as well as new resources invented since then” was relevant to the analysis of the reasonableness of the policy. The Ninth Circuit held that the policy was reasonable and viewpoint neutral and therefore not a violation of the First Amendment right to association.
D. Students at Private Universities
As in the K-12 setting, students at private universities do not enjoy the same First Amendment protections as their public school counterparts. In the 2009 case Key v. Robertson, the District Court for the Eastern District of Virginia dismissed Adam Key’s lawsuit against Regent University and Pat Robertson (the famous televangelist and the university’s chancellor). Key was a law student at Regent when he posted to his Facebook page a doctored image of Robertson giving the middle finger. After being asked to remove the image from Facebook, Key complied but attached the image to a post on Regent’s LISTSERV, a private web forum for students, faculty, and staff. He followed up with several posts about the image, saying in one that the picture demonstrates “Robertson is a very bad man.”
Instructed to issue an apology or file a brief challenging any discipline, Key decided to fight the Regent administration, both through administrative channels and the press. At the same time, other students reported bizarre behavior by Key, including rumors that he kept a gun in his car on campus. While the legitimacy of these rumors was never established, it came out that Key did carry without permission an electric stun gun on campus. Regent provided Key with several opportunities to resolve these issues internally, including seeking mental health treatment and appearing before the administration to address the various concerns. However, Key ignored these remedies, was suspended for one year, and then filed suit in federal court.
All of Key’s claims were dismissed by the district court on summary judgment. As to Key’s claim that his First Amendment rights had been violated, the court held that Key failed to establish that the government had infringed upon his free speech rights. In addition, Key claimed he had been defamed by Robertson, who said Key had manipulated the image that was posted. The court found Robertson’s statement to be “entirely true, and thus incapable of being defamatory.” All other claims were dismissed as well.
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In sum, the only thing clear at this point in time is that the law governing the discipline of university students for use of social media is even less clear than the law governing the discipline of K-12 students for such behavior. Courts have applied various standards, including relying on theories of contract and waiver, which do not cohere into a single doctrine. Until more circuits—or the Supreme Court—address the issue, trial courts will most likely apply different tests on a case by case basis.
This content has been added to Wassom on Social Media Law, my ever-evolving e-treatise on the law of social media.
