Whose Right is it Anyway?
The Latest Free Speech
Controversies Involving
Teachers and Students
Lisa Anne Smith
Sesaly Stamps
DeConcini McDonald Yetwin & Lacy, PC
Introduction: The First Amendment
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for a redress of grievances.
Charter Schools
Does the First Amendment apply?
Employees
Students
Caviness v. Horizon Community Learning
Center: A charter school is likely a state
actor for certain purposes and not others.
EMPLOYEE SPEECH
Public Employee Speech
Is the speech at issue on a matter of public
concern?
 Is the employee speaking as a citizen or as an
employee (is the speech or expressive conduct
made within the scope of the employee’s job
duties)?
 Can you restrict the speech in a manner that
achieves a balance between the interests of the
public employee, as a citizen, in commenting upon
matters of public concern, and the interest of the
State, as an employer, in promoting the efficiency
of the public services through its employees?

A Matter of Public Concern?



Speech does not have to be made in a public
forum in order to be considered a matter of
public concern. A private complaint can
trigger protection.
Speech about personal grievances within the
context of public employment does not
qualify as matters of public concern.
A public employer must make a reasonable,
good faith effort to determine if the speech
dealt with matters of public concern before
imposing discipline.
Citizen or Employee?
When public employees make statements
pursuant to their official duties, they are not
speaking as citizens for First Amendment
purposes and thus not exempt from
employer discipline.
 As a general matter, teachers do not have
First Amendment rights based on what and
how they teach.
 The issue of “academic freedom” in K-12 has
not been decided in the Supreme Court, but
most lower courts find no academic
freedom in K-12.

Johnson v. Poway Unified School
District (9th Circuit, Sept. 2011)
Math teacher displayed banners in class:
“In God We Trust”
“One Nation Under God”
“God Bless America”
“God shed his grace on thee”
“They are endowed by their Creator”
Speaking as a citizen or employee?
Johnson v. Poway Unified School
District (9th Circuit, Sept. 2011)
School district ordered teacher to take
down the banners. The teacher complied
and then sued for violation of First
Amendment rights.
Holding: No violation. School district is
free to “take legitimate and appropriate
steps to ensure that its message is neither
garbled nor distorted” in the classroom.
Pickering v. Board of Education,
391 U.S. 563 (1968)
Teacher’s employment is terminated after the teacher
sends a letter to a local newspaper that is critical of the
board of education’s financial plans and is factually
inaccurate.
Supreme Court held the speech was protected by the First
Amendment and teacher could not be dismissed for it.
◦
◦
◦
◦
Subject of the letter was a matter of public concern
Teacher did not have any special or inside
knowledge about financial plans
Board could have published the true facts
Statements were not knowingly or recklessly false
Teachers and Social Media

With new technology comes new challenges,
but the test is still the same:
1.
Speaking as a citizen on a matter
of public concern?
2.
If no, you can restrict the speech
and impose discipline.
3.
If yes, any restriction must
balance free speech rights with
interest in promoting the efficiency
of its public services.
4.
Also, is the speech “cause” for
termination?
What do you do with a Drunken
Pirate?


A student teacher posts a picture on
Myspace of herself dressed as a pirate,
drinking something with the caption
“Drunken Pirate.”
Access to the My Space page is open to the
public and she invites her students to find
her there.
No protection: not a matter of public concern.
Snyder v. Millersville University, E.D. Pennsylvania
(2008)
He did what?
High school art teacher is also an artist that
creates art by spreading paint on his
buttocks and pressing them onto canvas.
 Teacher kept his “moonlighting” separate
from his teaching career but a YouTube video
was recognized by other faculty.
 The teacher was fired. The ACLU sued on
his behalf alleging violation of the First
Amendment.
 The school district settled for $65,000.
Murmer v. Chesterfield County School Board,
2008

Posing with strippers
Teacher attends a bachelorette party and
poses for pictures with a male stripper
who is providing the entertainment.
 The photos are posted to Facebook.
 The teacher is suspended.
 The ACLU sues and the District settles
for $10,000 plus back pay.

Are your Spidey senses tingling?




Teacher Mr. Spanierman (aka Spiderman)
uses MySpace to communicate with students
about homework and to “get to know them
better.”
Profile page includes pictures of the teacher,
pictures of students, and pictures of naked
men.
Mr. Spiderman is non-renewed and sues.
The court upholds the school district’s
decision.
Spanierman v. Hughes, (2008)
Ashley Payne’s European Vacation
700 vacation photos posted on Facebook,
including 10 with alcohol. Her FB page was
private.
Ashley Payne’s European Vacation
Principal told her to resign or face a
report to professional standards
committee because of an anonymous
parent complaint.
 Still unclear whether anonymous
complaint was from a parent.
 Lawsuit pending.

Betsy Ramsdale Takes Aim
Teacher placed on administrative leave for
having this photo of herself on her
Facebook page.
 When brought to her
attention, she removed
it and said she didn’t want any
controversy.
Still employed and no further news.

Jerry Buell: Back at Work After
Almost Throwing Up

Stated on his Facebook page that after
hearing about legalized gay marriage he
“almost threw up” and called gay union a
cesspool and a sin.

Suspended, but ultimately placed back in
the classroom with some kind of written
documentation in his file.
What is a school to do?
Discipline more likely to be upheld if the content
of the inappropriate speech involves students or
is connected to the school in some manner.
 If the employee can show constitutionally
protected speech was a substantial factor in the
school’s decision to discipline, can the school
show it would have reached the same decision for
other reasons?
 Schools can make reasonable rules about social
networking with students and should provide
training to teachers on expectations regarding
appropriate online communication.

Angry Parents Use Social Media, Too
A Gilbert man was sentenced to three
months in jail for computer fraud and
identify theft after he created a fake
profile on a pornographic website to get
back at the assistant principal at his son’s
elementary school after the AP took his
son’s iPod.
 He used the AP’s name and photos from
the school website to create the profile
and chat on-line.

STUDENT SPEECH
Tinker v. Des Moines Indiana School
District, 393 U.S. 503 (1969)
U.S. Supreme Court rules that a school district
could not prohibit students from wearing black
armbands to protest the Vietnam War:
constitutional rights are not shed at the
schoolhouse gate.
“The record does not demonstrate any facts which
might reasonably have led school authorities to
forecast substantial disruption of or material
interference with school activities, and no
disturbances or disorders on the school premises in
fact occurred.”
Bethel School District v. Fraser
478 U.S. 675 (1986)
Student could be disciplined for giving a lewd
and vulgar speech at a school assembly.
“A high school assembly or classroom is
no place for a sexually explicit monologue
directed towards an unsuspecting audience of
teenage students. Accordingly, it was
perfectly appropriate for the school to
disassociate itself to make the point to the
pupils that vulgar speech and lewd conduct is
wholly inconsistent with the ‘fundamental
values’ of public school education.”
Watts v. United States
394 U.S. 705 (1969)
“If they ever make me carry a rifle the first man
I want to get in my sights is L.B.J. “
“True Threats” are not protected speech, but
political rhetoric such as this comment does
not constitute a true threat.
On-Campus Speech


Cox v. Warwick Valley Sch. District,
(2nd Circuit, August 2011): Middle school
temporarily removed from class based
on an essay depicting violent suicide.
No free speech violation: protective,
not disciplinary.
Barber v. Dearborn Public Schools,
286 F.Supp.2d 847 (E.D. Mich. 2003): student has a
right to wear George Bush as
“International Terrorist” t-shirt despite
“high” terrorist alert.
Sapp v. School Bd. of Alachua County
(N. Dist. Florida, Sept. 30, 2011): School District
could prohibit students from wearing
“Islam is the Devil” t-shirt because of
reasonable forecast of substantial
disruption.
 B.W.A. v. Farmington R-7 Sch. Dist.,
554 F.3d 734 (2009): School could suspend
students for wearing Confederate flag
t-shirts based on reasonable forecast
of substantial disruption.




H.D. v. Easton Area Sch. Dist., (E.D.
Pennsylvania, 2011): School could not ban “I
♥ Boobies” bracelets: not vulgar and no
reasonable forecast of substantial disruption.
Morse v. Frederick, 127 S.Ct. 2618 (2007):
School could ban “Bong Hits 4 Jesus” banner
at school sponsored event because it
promotes unlawful drug use.
Doe v. Silsbee, (5th Circuit, September 2011):
No free speech violation for disciplining
cheerleader who refused to cheer for
student who she accused of assaulting her.
What about off-campus speech?

Analysis for off-campus and on-campus
speech is essentially the same. It is the
impact to the school, not the place where
the speech is made, that matters:
◦ Watts: Is it a true threat? If so, not protected.
◦ Tinker: Did protected speech cause an actual or
reasonably foreseeable substantial disruption or
material interference with school activities?
◦ Fraser: Frequently mentioned; rarely relied upon.
Student Speech that
Criticizes the School,
Administrators,Teachers
Lack v. Kersey (N.D. Georgia, March 2012)
Student removed as student body president
after Facebook posts and other speech in
which he “vilified” the principal for issues
regarding the President’s Council and
accused specific Council members of doing
things to protect themselves from a
disgruntled student body.
Holding: Facebook posts were protected
because they were “non-violent and did not
cause a material or substantial disruption.”
Doninger v. Niehoff (2nd Circuit, 2011)
A student was prevented from running for
class secretary after posting information on
a blog alleging “jamfest is cancelled due to
douchebags in central office.” The student
encouraged readers to contact the school
and “piss [them] off more.” Jamfest had
actually not been cancelled.
Doninger v. Niehoff, cont.
Holding: It was objectively reasonable for
school officials to conclude the blog posts
would cause a substantial disruption:
• Phone calls and emails for2 days.
• Administrator schedules disrupted
• Many upset students gathered outside the
principal’s office.
• Court suggested student might be
prohibited from running for Class Secretary
because of offensive off-campus speech
related to a school event (Fraser standard?).
Flaherty v. Keystone Oaks School
District (W.D. Pa. 2003)
Student posted on web-message board, from
home and school, about a volleyball rivalry. He
made derogatory remarks about a player on
the other team, used crude language, and
insulted that player’s mother (who taught at
plaintiff’s school).
Holding: Rules were unconstitutionally vague
& overbroad because they did not link
discipline to substantial disruption. Principal
believed he could discipline for disrespectful
speech that brought negative publicity and
attention to the school and team.
Evans v. Bayer (S.D. Fla. 2010)
High school student created a Facebook
page called “Ms. Sarah Phelps is the worst
teacher I’ve ever met.” Others were invited
to post their feelings.
Holding: Student’s speech was protected.
Page was an expression of student’s opinion
about a teacher, did not cause disruption,
was not lewd or threating and did not
advocate illegal behavior.
Neal v. Efurd (W.D. Ark 2005)
Two students each created a website critical of
school and allowed others to post comments. A
parent complained about the negative portrayal of
athletes & band members and some “hateful
comments.” Students were suspended and faculty
were informed they were suspended for making
threatening statements regarding staff members.
In fact, there were no threatening statements on
the websites made by these two students.
Neal v. Efurd, cont.
Holding: The only evidence of a disruption
was that the suspension of the students and
the email describing threatening comments
caused the disruption, not the websites
themselves; even then, disruption was
minimal.
 Students cannot be punished for
comments made by others.
 No true threat, so Tinker applies & no
substantial disruption.
Beussink v.Woodland R-IV Sch. District
(E.D. Mo 1998)
Student created a webpage highly critical of
administration, which included crude and
vulgar language. He showed it to a friend, at
home, who got mad at him and showed it to
the computer teacher. Principal made an
immediate decision to discipline.
Holding: Discipline was because principal
did not like the speech, not because of a
forecast of substantial disruption.
ACLU v. Minnewaska Area School
District (Pending Litigation)
Student, while at home, posted comments
on Facebook expressing dislike of a school
staff member. Student was given detention
and ordered to write an apology.
The student then “cursed” on her Facebook
page about someone reporting her to the
school. Student was given in-school
suspension and prevented from participating
in a field trip.
Threats
D.J.M v. Hannibal (8th Circuit, 2011)
High school student had instant message
conversation with another student (C.M.)
about his frustration at being spurned by
another student, L., a romantic interest.
D.J.M.: What kinda gun did your friend have
again?
C.M.: 357 magnum. Ha ha would you shoot
[L.] or let her live?
D.J.M.: I still like her so I would say let her live.
C.M.: Well who would you shoot then lol.
D.J.M.: everyone else
D.J.M v. Hannibal, cont.
D.J.M. then proceeds to name specific students he
would have to get rid of as well categories of
students using multiple derogatory terms. At several
points, both students used LOL and similar
shorthand indications of amusement. Still, C.M.
became worried and reported to an adult.
Holding: D.J.M.’s words could reasonably be
considered a true threat.
• The reaction of those who read his messages is
evidence that his statements were understood as
“true threats.”
• Also found discipline met the Tinker standard.
Emmett v. Kent Sch. District
(W.D. Wash 2000)
Student created an “Unofficial Kentlake High
Home Page,” with disclaimers. Site included
mock obituaries and a place to vote for
who should “die” next. Local news
reported on the website and referred to it
as including a hit list.
Holding: No evidence that website was
threatening or resulted in substantial
disruption.
Mahaffey v. Aldrich (E.D. Mich. 2002)
Student created “Satan’s Web Page.” In
addition to other content, the website
suggested that the reader commit murder
for no reason, and then said: “P.S. NOW
THAT YOU’VE READ MY WEB PAGE
PLEASE DON’T GO KILLING PEOPLE
AND STUFF AND THEN BLAMING IT O
ME, OK?”
Holding: No true threat, no substantial
disruption.
O.Z. v. Board of Trustees of Long Beach
Unified School District (C.D. California
2008)
Middle school student suspended after
creating a slide show depicting simulated
killing of 7th grade English teacher and
posted on YouTube.
Holding: Slide show created a foreseeable
risk of substantial disruption.
Wisniewski v. Board of Education
(2nd Cir. 2007)
Eighth grade student suspended for instant
messaging from a home computer a drawing
that suggested a particular teacher should
be shot and killed. Image was seen by at
least 15 recipients, including classmates and
the teacher.
Holding: Reasonably foreseeable that the
drawing would cause a disruption within the
school environment. No “true threat”
analysis required.
ACLU v. Griffith (Pending litigation)
Students suspended after posting on
Facebook about which classmates they
would like to kill. The students used “LOL”
and emoticons in posts.
At least two students refused to attend
school the next day apparently out of fear.
School district alleges it was a true threat.
Bullying
Kowalski v. Berkeley County Schools
(4th Circuit 2011)
A high school student, Kara Kowalski,
created a MySpace page using her home
computer. The page was called S.A.S.H.
(Students Against Sluts Herpes) and was
designed to target another student.
Holding: School district could discipline
Kowalski under the substantial disruption
standard.
Kowalski v. Berkeley County Schools,
cont.
“[T]he language of Tinker supports the
conclusion that public schools have a
‘compelling interest’ in regulating speech
that interferes with or disrupts the work
and discipline of the school, including
discipline for student harassment and
bullying.”
J.C. v. Beverly Hills Unified School
District (C.D. California 2010)
High school student took a video of students
making derogatory remarks about C.C.,
another student who was not present in the
discussion. The video was posted on YouTube.
C.C. complained and the student who had
posted to YouTube was eventually suspended
for two days.
Holding: No evidence that the video caused a
substantial disruption or that there was a
reasonably foreseeable risk of such disruption.
Coy v. Board of Education
(N.D. Ohio 2002)
Student created a website at home that
included a page entitled “Losers” and had
photos of three other students. Insults
were written under the pictures; the most
objectionable one accused a boy of being
sexually aroused by his mother. Other
pages were generally crude and juvenile.
Student accessed page from school on one
occasion.
Coy v. Board of Education, cont.
Holding:
 Fraser does not apply because no captive
audience and because speech was crude
but not a graphic, explicit metaphor as in
Fraser.
 Tinker applies and there is an issue of fact
re: basis for discipline:
◦ If for accessing website (although implausible),
discipline will be upheld.
◦ If for speech itself, it will not be: no disruption.
On-line Videos as Speech
Requa v. Kent School District
(W.D. Wash 2007)
Student created and posted on YouTube a
video of teacher, including shots of her
buttocks and a video of another student
standing behind her and making pelvic
thrusts in her direction. No information
that the video became common knowledge
at school or caused any disruption.
Holding: Discipline, which was based on
disruptive, harassing, on-campus conduct,
not off-campus speech, likely to be upheld.
J.C. v. Beverly Hills Unified School District
(C.D. California 2010)
Derogatory video about C.C. posted on
YouTube.
Holding: No evidence that the video
caused a substantial disruption or that there
was a reasonably foreseeable risk of such
disruption. Discipline based solely on offcampus speech.
O.Z. v. Board of Trustees of Long Beach
Unified School District (C.D. California 2008)
Middle school student suspended after
creating a slide show depicting simulated
killing of 7th grade English teacher and
posted on YouTube.
Holding: Slide show created a foreseeable
risk of substantial disruption.
Rap Songs
Bell v. Itawamba (N.D. Mississippi 2012)
High school student suspended after posting
rap song on YouTube criticizing two coaches,
using vulgar language, references suggesting
coaches should be killed and alleging improper
contacts with female students. Video was
widely disseminated and the coaches felt
threatened and that it would harm their
reputations.
Holding: Discipline upheld because a
substantial disruption was reasonably
foreseeable.
Latour v. Riverside Beaver Sch. Dist.
(W.D. Pa. 2005)
Student wrote and recorded 4 rap songs,
published them on the internet and sold
them in the community. Court found that
violent imagery in rap does not mean
violence is actually threatened. Students
were mentioned in songs, but they were
humiliated and heart-broken, not
threatened. At school, the disruption was
based primarily on student’s discipline and
arrest.
Latour v. Riverside Beaver Sch. Dist.,
cont.
Holding: Discipline was unconstitutional
because speech was protected (not a true
threat) and there was no substantial
disruption before student’s discipline
(although one student mentioned in a song
left school district – song was the “straw
that broke the camel’s back”). Disruption
caused by the discipline is not disruption
caused by the speech.
Fake Profiles
Snyder v. Blue Mountain Sch. Dist.
(3rd Cir. 2011)
Middle school student created fake profile
of principal and included profanity and
insinuation that principal was a sex-addict
and a pedophile. So outrageous it could not
be taken seriously.
Holding: No showing of a substantial
disruption or a reasonable forecast of one.
An “undifferentiated fear or apprehension of
disturbance is not enough to overcome the
right of freedom of expression.”
Layshock v. Hermitage School Dist.
(3rd Cir. 2011)
High school student created fake MySpace
profile of principal, which included lewd
sexual references and suggestions that the
principal drank too much and used illegal
drugs. Profile reached most, if not all, of the
student body.
Holding: Fraser does not apply because
speech is not school sponsored; no
evidence of any substantial disruption.
Killion v. Franklin Regional Sch. Dist.
(W.D. Pa. 2001)
Student created a “Top Ten” list about the
school's athletic director and emailed it to
friends, one of whom brought it to school.
Student was given a 10 day suspension for
verbal/written abuse of a staff member.
Holding: Speech did not cause a substantial
disruption and was not threatening. District
cannot discipline for lewd, abusive,
derogatory off-campus speech.
Barnett v.Tipton County Bd. of Ed.
(W.D. Tenn. 2009)
Students created fake profiles for an assistant
principal and a coach which included photos
and bios from the Board’s website as well as
suggestive comments about female students
and accessed them from school.
Holding: The speech was not protected
because it was not a parody. Visitors to the
sites thought the profiles were authentic and
that the men had engaged in the conduct
described.
Dual Motives for Discipline
Requa: The “Ms. Booty” video: Students engaged
in secret videotaping and other disruptive
on-campus conduct.
Lack: The critical (and ineffective) student body
president: In addition to publishing
protected Facebook posts, student failed
to fulfill duties of post.
Coy:
The “Loser” website: Student accessed
website from school, but little evidence
that district ever disciplined on that basis.
Carroll v. Garrett School District (Pending
Litigation)
Student expelled after a “profane rant” on
Facebook late at night. There is a factual
dispute over whether student was using his
home computer & network or the school
computer & network and over whether he
posted from home but accessed Facebook
from school the following day.
Student On-Line Speech Summary
Is the law inconsistent in this area, or do the
cases just present different facts?
 Who is the target and what is being said?
 Are the comments believed?
 Is the speech threatening?
 Is the speech actually or foreseeably
disruptive?
 What factors were considered in
disciplining?
Questions?