One of the technology-related civil liberties battles that ACLU affiliates around the country have been fighting in recent years involves defending students’ rights to privacy and free expression in the new electronic media that are becoming such a large part of their lives. For some reason many school officials seem to believe that when it comes to online communications, students have no such rights
We have a case underway in Minnesota, for example, that exemplifies these problems. I got on the phone with Teresa Nelson, Legal Counsel at the ACLU of Minnesota, and she told me about it:
Our client, “R.S.,” is a typical 12-year-old middle school student. One day she posted on Facebook that she hated one particular hall monitor because “she was mean to me.” She made this post from home, on her own Facebook account, outside of school hours. Somehow her principal obtained a screen shot of this posting, and called R.S. into his office to talk to her about it. The school actually claimed that the 12-year-old girl had engaged in “bullying” of the adult hall monitor. R.S. received a disciplinary notice for being “rude/discourteous.”
Afterwards R.S. put up a Facebook post that said, “I want to know who the f%$# told on me.” That prompted a much swifter reaction. This time she was subject to a day of in-school suspension for “insubordination” and “dangerous, harmful, and nuisance substances and articles.” She was also barred from participating in her class ski trip.
Fast forward about a month. The parent of a middle school boy contacted the school and said R.S. had been chatting on Facebook with her son about sex. The boy later admitted to starting the conversation. But school officials called her in again to ask her about this private, off-campus conversation. Later in the day they pulled her out of class a second time, and this time brought her before a sheriff’s deputy, who was in uniform and wearing a Taser. They grilled her about the Facebook conversation, and then demanded that R.S. give them her Facebook and email passwords. R.S. felt highly intimidated by the police officer and two other adults, who pressured her and threatened her with detention.
The school officials then searched her private Facebook profile page, including private communications and things such as quizzes she’d taken. She sat there as they read through her private accounts, and they berated her over things they saw—chastised her for having taken boyfriend quizzes and sex quizzes, for example. She was humiliated. At the time, Facebook didn’t archive chat conversations, so the search didn’t actually reveal anything about the communications that had set off this search.
After they did the search, they notified her mom. R.S. was frightened and humiliated and didn’t want to go to school for several days afterwards. Ultimately there was no discipline against R.S. that came out of this. They weren’t even looking for violations of school rules—but they certainly didn’t find any.
The ACLU of Minnesota filed a complaint alleging violations of R.S.’s First and Fourth Amendment rights and seeking damages, a declaratory judgment, and injunctive relief to prevent the school from engaging in such conduct in the future. In July, the Minnewaska Area School District moved to have the case dismissed, but District Court Judge Michael J. Davis rejected the motion in August, holding that “the general rule that schools may not regulate merely inappropriate out-of-school speech” has been “well-established for decades.” There is, as he wrote,
a narrow exception to the general rule—an exception which applies to true threats or egregious statements likely to make their way to school and cause a substantial disruption to the school environment. Courts have applied such an exception sparingly, applying it only to the most violent and threatening forms of speech and consistently declining to expand it to extremely offensive but nonviolent out-of-school speech.
Currently, Nelson says, they’re just beginning the discovery process in the case. However, she is also hopeful that they can reach a settlement with the school district. “Our hope with settlement is that we can get a model for other schools in the state. If this school will make some policy changes to prevent this from happening again, we’re hopeful other schools will follow suit.”
On-campus punishment for off-campus speech is a trend that ACLU affiliates around the country are unfortunately seeing. However, as Nelson points out, this case is unusual.
When you look at cases around the country, where schools have punished students for off-campus speech, the legal battles are over whether that speech was likely to cause a disruption in school. Most of those cases involve web sites that engage in much more extreme satire. In this case, if R.S. had made her comment in the hallway at school instead of on Facebook, it probably wouldn’t have even been punished.
Nelson points out that for some reason, some administrators treat speech differently when it happens online.
If the principal had been standing in line at McDonald’s and heard a student saying something off-color, he wouldn’t punish that in school. But because it happens online, schools think they can punish kids for it. And you wouldn’t have school administrators lurking around McDonald’s just to see what kids are saying—but you do have administrators lurking online. Somehow because it’s online, principals think it’s appropriate to troll for material. Though, that’s not happening so much anymore now that people have started to understand privacy settings on Facebook.
That last comment highlights an important part of what we’re seeing as society learns to assimilate new technologies such as social networks. Gradually, driven by the ever-present need for privacy, students and others will get savvier about controlling their privacy. At the same time, students and organizations like the ACLU will continue fighting to ensure that existing offline rights are not eroded when it comes to their online equivalents. All too often schools, government agencies, companies and others think that new technologies provide a license for intrusive behavior that would never be tolerated in offline analogs.
The ultimate goal in our battle is to allow everyone to use technology to the fullest, secure in the knowledge that their rights are understood and respected by all.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.