Supreme Court’s Indecision Leaves Schools, Students Unsure of Speech Rights

The U.S. Supreme Court yesterday stoked the fires of a hot free speech debate—without
even taking a case or issuing a decision. The Court did so by choosing not to hear appeals in two cases that
reached contradictory conclusions about the authority of public school officials to punish students for online,
off-campus speech.

In two consolidated cases originating out of Pennsylvania, the Third Circuit Court of Appeals held that school
officials could not punish students for degrading their principal on a social networking site. At the same time,
the Fourth Circuit Court of Appeals upheld the 5-day suspension of a student in West Virginia who spread a
rumor online that a fellow student had a sexually transmitted disease.

Legal experts are concerned that the conflicting rulings may lead schools throughout the nation to overreach in
censoring student speech. “This lack of resolution by the Supreme Court could open the door for more school
districts to suppress student speech, including expression of religious or traditional values on Facebook,” said
Brad Dacus, President of Pacific Justice Institute. “With so much anti-Christian censorship already occurring
inside the classroom, the last thing we need is public schools censoring even more speech outside the
classroom.” Late last year, PJI voiced similar concerns after a New Jersey teacher was suspended for
expressing religious beliefs against homosexuality on her personal Facebook page.

The Supreme Court’s landmark 1969 decision in Tinker v. Des Moines Independent School District established
speech rights for students while allowing officials to control expression that disrupts the learning environment.
Tinker arose in the context of anti-war protests in the Vietnam era. In 2007, the High Court upheld school
disciplinary action against a student in Alaska who held up a “Bong Hits 4 Jesus” sign across the street from his
school, when the entire school had gone outside to watch the Olympic torch relay. Lawyers like Dacus believe
it’s too much of a stretch, though, to say that those cases justify school punishment of expression that happens
outside school hours and miles away from campus.

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The Pacific Justice Institute is a non-profit 501(c)(3) legal defense organization specializing in the defense of
religious freedom, parental rights, and other civil liberties.

P.O. Box 276600 Sacramento, CA 95827-6600

Phone: (916) 857-6900 Fax: (916) 857-6902 Internet: www.pacificjustice.org