Article by:
Lily M. Strumwasser

36 Campbell L. Rev. 1 (2014)

INTRODUCTION. “Teachers, principals, legislators, and judges have been wrangling for decades in their attempts to find the right doctrinal formula for school speech.”

Social media is an integral part of modern society. People of all generations use social media as an online platform to share information and interact with known and unknown contacts. There is an online resource for virtually every interest imaginable. People can share videos on YouTube, post pictures on Pinterest, and offer status updates on Twitter. Professionals can network by displaying their resumes on LinkedIn or through advertising their businesses on blogs. Reddit is a social news site that permits users to comment on posted items. The online dating industry is also a hot commodity. In 2012, over forty million people used websites such as eHarmony and Match.com. And then there is Facebook—the world’s largest social network. Facebook alone has 1.4 billion members.

A recent study examined the use of social networking websites and revealed that seventy-nine percent of American adults use the Internet, and fifty-nine percent of adult Internet users report that they use at least one type of social networking website. Although adults have a clear presence in social media, teenagers and young adults largely dominate the industry. A striking ninety-eight percent of individuals eighteen to twenty-four years old are connected to social media.

Near constant connection to smart phones, iPads, and laptop computers has made social media accessible almost anytime and anywhere. The emergence of social media has created undeniable disruptions at schools—especially inside the classroom. Cyber speech raises legal issues relating to the forum of speech and the audience by which it is heard. Now more than ever, courts are faced with the question of whether school administrators can discipline students for their off-campus cyber speech. There are no clear guidelines that dictate the extent to which school administrators may discipline students for such speech. In fact, only a handful of circuit courts have weighed in on this issue. Nevertheless, such decisions have “produced a welter of precedents reflecting divergent reasoning and less-than-predictable outcomes.

Because legal issues involving technology and education are complex and unprecedented, it is only a matter of time until the United States Supreme Court addresses the question of when schools can discipline students for off-campus cyber speech. Until that time, however, school administrators are in a “flex” position left wondering whether disciplining a student for content on a social media website will violate the First Amendment. This Article charts new territory and addresses the extent to which school administrators can regulate students’ off-campus cyber speech.

AUTHOR. Lily Strumwasser is an attorney in the Chicago office of Seyfarth Shaw LLP in the area of labor and employment law. Ms. Strumwasser publishes regularly on a variety of employment and litigation topics, including social media compliance issues, focusing on best practices to avoid litigation and develop internal compliance initiatives. Prior to joining Seyfarth, Ms. Strumwasser held a judicial externship with the Honorable Charles Kocoras of the U.S. District Court for the Northern District of Illinois and the Honorable James G. Carr of the U.S. District Court for the Northern District of Ohio. Contact: lstrumwasser@seyfarth.com.

From the author: A special thanks to Ira, Jennifer, and Conor for your encouragement and unwavering support. I would also like to thank Theodore Sky, Professor of Education Law and retired senior counsel to the general counsel of the U.S. Department of Education, and Mary Kay Klimesh, Partner at Seyfarth Shaw LLP for their invaluable insight and assistance on the development of this Article.

Download the full article.