School is back in session, and that means school administrators may be back to surveilling students on social media and unjustly disciplining them for what they say on it.
We’ve seen both of these troubling trends before. And in today’s era of , they may become all the more prevalent. Moreover, experience shows that discipline for student expression is not always applied evenhandedly, and can be invoked to silence youth of color and other marginalized students.
Fortunately, the First Amendment protects student speech. While public schools can regulate student speech that substantially disrupts the functioning of the school, as the Supreme Court held in the landmark 1969 case Tinker v. Des Moines, students do not lose their First Amendment rights simply by virtue of walking into school. Nor do they give up their right to speak out outside of school simply by virtue of being a student. To the contrary, outside of school, students enjoy essentially the same rights to protest and speak out as anyone else.
In the last five years, more than 100 public school districts and universities have . At least one district asked a surveillance company for alerts on any post mentioning “protest” or “walkout.” Another surveillance company offered to help public schools monitor “behavioral information” about specific individuals, including keeping tabs on their conversations with others.
Know Your Rights: Students’ Free Speech Rights
Much like other forms of surveillance, government monitoring of students’ social media accounts — which often includes surveillance of their lives outside of school — can have a disproportionate effect on people of color.
For example, after an Alabama town contracted with a consulting firm to watch students’ social media, more than 85 percent of the students expelled due to social media posts in a one-year period were students of color, even though more than 60 percent of the town’s population is white. As the Southern Poverty Law Center , one student was expelled for wearing a sweatshirt depicting her murdered father, and another was expelled for posting a photo of himself “holding too much money.”
Elsewhere, the ACLU has challenged school districts that disciplined students of color over photographs taken while dancing at home, with the schools alleging that these constituted “gang-related messages.”
This disproportionate effect is perhaps not surprising, given that some school officials around the country have disciplined students of color who, in an effort to criticize and push back against the racist speech of classmates, reposted it. One school in North Carolina for reposting a video of a white classmate using a racial slur while criticizing gun control laws. Similarly, an Ohio school suspended two students for on Snapchat.
Schools are meant to teach the Constitution — and follow it. That means respecting equality and freedom of speech. And when students speak out on the political issues of the day, it should lead to engagement, not wrongheaded punishment.
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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.