As social media expand, rulings evolve for students and teachers expressing freedom of speech

The Internet has freed us to express ourselves. At any moment, we are mere mouse clicks or smartphone keystrokes away from beaming our innermost thoughts -- and our political views, baby photos and much else -- to a wide audience.

But for students and teachers, this liberty can come at a price. As social media penetrate ever deeper into school culture, courts have had to rule repeatedly on what online conduct merits suspension, expulsion or dismissal. What's more, these legal standards for behavior are sometimes still applicable beyond the schoolhouse gate.

Two types of student expression are generally banned outright on public school campuses: vulgar speech (shouting a four-letter word at an assembly) and speech that promotes illicit drug use (donning an "I love ganja" T-shirt.)

Beyond these prohibitions, public school officials can dictate, with a great deal of latitude, the parameters of student expression in school-sponsored copy: yearbooks, school newspapers, newsletters or online publications.

All other questionable on-campus conduct is measured by the standard set by the U.S. Supreme Court's 1969 ruling in Tinker v. Des Moines Independent Community School District. In Tinker, the court ruled in favor of students who wore black armbands to school to protest the Vietnam War. The majority found that public schools -- as an arm of the federal government -- must have a constitutionally valid reason before they regulate free speech.

The standard, referred to in First Amendment circles as "the Tinker test," requires that a student's action or speech rises to the level of a "material or substantial disruption" to the school setting before officials can take disciplinary action.

But in this new cyber age, the lower courts have begun hearing a litany of cases related to students' online speech in forums such as Facebook, which more often than not occurs off campus.

In two rulings by the U.S. Court of Appeals for the 2nd Circuit, the majority applied the Tinker test and ruled in favor of schools punishing students -- in the jurisdiction of New York, Connecticut and Vermont -- for off-campus online posts deemed disruptive. Yet the federal appeals court for the 3rd Circuit, which oversees Delaware, New Jersey and Pennsylvania, ruled in favor of Pennsylvania teenagers -- at Blue Mountain Middle School, just north of Reading, and at the Hermitage School District in Mercer County -- who were disciplined by their respective schools for posting unflattering Web profiles of their principals online. Both students crafted their fake profiles off campus, one on his grandmother's computer and the other on her parents'.

The appeals court said the students had a right to satirize and criticize principals as long as it didn't create a substantial disruption to school life.

"It was a victory," said Witold Walczak, who represented both students as legal director of the American Civil Liberties Union of Pennsylvania. "But the most important legal question remains unresolved, and that is: What legal standard governs school officials' authority to discipline students for off-campus speech?"

Attorney Jonathan P. Riba, who represented the Blue Mountain administrators in the lawsuit, said this is "an unsettled area of the law." The 3rd Circuit majority avoided "splitting" with the 2nd Circuit, saying that without guidance from the Supreme Court on the matter, they assumed that Tinker applied to the student's off-campus speech.

However, Mr. Riba explained, "They didn't affirmatively state that [the Tinker standard] applies. ... It's technically still an open question."

The ACLU argues that once students leave campus, the school is stripped of the authority to punish them for online speech. If students defame school officials outside of school, Mr. Walczak said, it is not fair grounds for disciplinary action; however, their online speech in some cases could provide the school with grounds for a defamation suit.

A different legal standard applies when it comes to adults. Public school teachers have First Amendment rights as private citizens, but they may be subject to discipline or discharge if their online posts disrupt the school environment or diminish the teachers' potential as role models.

Some teachers have been punished for peer-like interaction with students, texting them, or "friending" them on Facebook. The key for school administrators taking such action is proving how teachers' online behavior influences their future standing in the classroom. The circumstances under which schools take action vary wildly.

Matthew Hoffman, a University of Pittsburgh Law School professor and shareholder at Tucker Arensberg, represents schools that have suspended or fired employees for inappropriate social media posts. After combing through national news clippings on this phenomenon, he shared his findings last month in a lecture at a Pitt Law School symposium:

• In November 2009, a Barrow County, Ga., high school teacher was dismissed for posting Facebook photographs of herself with beer mugs and wine glasses while on vacation in Europe, and using an expletive in one dispatch. "I cited that to point out that that's an extreme attempt to apply discipline," Mr. Hoffman explained. "What she did was not illegal." The teacher has sued the district.

• In the spring of 2008, a Millersville University student teacher assigned to Conestoga Valley High School, near Lancaster, went on MySpace and posted a photograph of herself in a pirate hat holding a cup with a caption that read "drunken pirate." The school deemed this '"unprofessional" and removed her from her unpaid student teaching position. She subsequently sued the university.

• In August 2010, a school administrator in Cohasset, Mass., remarked on her Facebook wall that residents of Cohasset were "so arrogant and snobby" and she was "so not looking forward another year at Cohasset Schools." The superintendent asked for her resignation and she complied, leaving her $92,000-a-year job supervising the math and science program. She only intended her comments for her 50 Facebook friends, she told a local newspaper. Mr. Hoffman said this seemed "a fair basis for discipline" since she insulted her employer's constituents.

• And finally, Mr. Hoffman cited a veteran New York City teacher who was fired in March 2011 after posting via BlackBerry on her Facebook page: "After today I'm thinking the beach is a good trip for my class. I HATE THEIR GUTS! They are all the devils spawn!" The day before a 12-year-old girl had drowned on a class trip to the beach.

The teacher told the New York Post her fifth graders were "out of control" in their last week in elementary school, "spitting on each other, kicking each other, putting gum in each other's hair." She was yanked from her classroom and later fired after a city Department of Education ruling. She later filed suit claiming the dismissal was excessive punishment.

Mr. Hoffman said he has given this sort of presentation to teachers and "I get chuckles out of some, and gasps out of some" when he goes over these real life firings.

It happens locally, too. A Fayette County Spanish teacher was placed on a 30-day suspension when another teacher went on Facebook and posted photos of her at a bachelorette party with a male stripper. The ACLU and the Pennsylvania State Education Association told district officials they were treading on her right to free speech by reprimanding her for legal, off-campus conduct. The district settled the case and paid the teacher for the lost days.

PSEA suggests that, before posting anything on a social networking site, teachers should assess whether they would gladly show it to their mothers, their students, their superintendent and the editor of The New York Times. In a "safe social media for educators" section of the PSEA's website, it's explained that teachers have freedom of speech in their personal lives, but that their online behavior is not shielded by the First Amendment if their speech "impedes your employer's effectiveness or efficiency, or otherwise disrupts the workplace."

Butch Santicola, PSEA spokesman for Western Pennsylvania, said the association gets strange inquiries often about the suitability of different online behavior.

Teachers have to use good judgement, he said.

"Even a very innocent action can be taken out of context and perceived as offensive," he said.