What’s in a Tweet? #Social Media, #Free Speech and #Schools

Our Law Law Land readers have been well-educated on the law of defamation as it relates to Twitter, and on the opinion of one of our bloggers that “Twitter sucks.” (I used to agree, and even though I’m coming around to Twitter slowly, I must say I still prefer Facebook as my time-vacuum, overshare medium of choice.) So when you all read about Kansas high schooler Emma Sullivan tweeting about Kansas Governor Sam Brownback, “Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot,” you knew she wouldn’t be liable for defamation because she was expressing an opinion, not making a statement of fact.

Maybe Governor Brownback’s staff should read our site a little more often too. The fact that Sullivan’s tweet didn’t meet the test for defamation didn’t stop them from notifying Emma Sullivan’s school principal about her tweet (sent to her legion of 60 followers!). In turn, the principal notified Sullivan that she needed to write an apology to the governor by Monday, November 28. On Monday, the Shawnee Mission School District issued a statement that Emma Sullivan did not need to write an apology to the governor but saying this issue presented “many teachable moments” about the use of social media. Sullivan, for her part, came forward — with, what else, a tweet — to state for the record that she would not apologize to the governor (“I’ve decided not to write the letter but I hope this opens the door for average citizens to voice their opinion & to be heard! #goingstrong”). Then an apology on Facebook ended up coming from the governor himself, who evidently decided not to run for reelection on his staff’s “silence the teenagers” platform when he declared, “My staff overreacted to this tweet, and for that I apologize. Freedom of speech is among our most treasured freedoms.”

Meanwhile, in the court of public opinion, people’s reactions have ranged from celebration of Emma Sullivan’s exercise of her free speech rights, to criticism of the Big Brother-esque nature of Brownback’s staff’s vigilance of his name in social media, to the sentiment that Sullivan was being rude, to agreement that Brownback “does suck.” (Oh, to go back to those innocent days where you believed your online postings were “private!”) So, given that she is a student, what limits are there on Sullivan’s speech?

In general, based on a famous 1969 Supreme Court case called Tinker v. Des Moines Independent School District, schools may only restrict students’ speech where the rule is necessary to avoid substantial interference with school discipline or the rights of others. In Tinker, the students in question were suspended from school for wearing black armbands in protest of the war in Vietnam, and this punishment was found to violate the First and Fourteenth Amendments.

But as this article in The Atlantic explains, that hasn’t prevented courts from upholding punishments of students in other speech cases, including one where a student held a banner reading “BONG HiTS 4 JESUS” and another where a student blogged in her off-campus time that school officials were “douchebags.” (I’m pretty sure she didn’t mean that literally. Then again, douchebags are hygienic products, so perhaps they should have taken it as a compliment.) In the BONG HiTS case, Morse v. Frederick, the Supreme Court held in an opinion by Chief Justice Roberts that “Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick” — even though the banner had been displayed off-campus (well, across the street, anyhow). In the blog case, the Second Circuit upheld the school’s decision to prohibit the student from running for senior class secretary, finding that her blog post “created a foreseeable risk of substantial disruption” at the school.

So in the case of Emma Sullivan, the school district would have had to argue that her speech was somehow disruptive of school discipline — a stretch of an argument that the district wisely chose not to pursue. But if Sullivan’s tweet were instead about school officials, one can imagine things may have turned out differently. (If Ferris Bueller’s Day Off was set in the present day, I have to assume Ferris would be taunting Principal Rooney via Twitter for the entire day. And now I’m really glad that Ferris Bueller’s Day Off is not set in the present day, because that would be a really boring movie.)

In addition, apart from Sullivan’s status as a student, there are ways that her speech could — but didn’t in this case — run afoul of the law. If Sullivan’s statements were statements of fact that were knowingly false, instead of statements of opinion, she could be liable for defamation after all. If she were impersonating Governor Brownback online (instead of just criticizing him), for the purpose of harming, intimidating, threatening, or defrauding another person, she could be found in violation of a statute like the one enacted in California this year.

And of course, setting aside the legality of it all, there are the potential personal ramifications for Sullivan to consider when applying to schools and jobs. Sorry, kids, that’s life in the Internet age.

Sullivan says that she doesn’t consider the outcome a victory. But her new fans (including her almost 15,000 new Twitter followers, compared to Brownback’s 3,400) may beg to differ. And in this blogger’s opinion, getting people to debate passionately and intellectually about the law and the Constitution — and giving us at Law Law Land a blog topic, to boot — is always a good thing.

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