Future Tense

In the Pandemic, Students’ Free Speech Rights Are More Important Than Ever

A woman standing outside, looking at her phone.
Students still have (some) First Amendment rights. Lisa McIntyre/Unsplash

Images of maskless students packing the hallways between classes at North Paulding High School in Georgia became the viral symbols this week of a nationwide battle over whether and how to reopen schools in the midst of a pandemic that is still really not under control. It was widely reported on Monday and Tuesday that the school—located about an hour outside of Atlanta—had reopened with a masks-optional policy, despite an outbreak among football players who had worked out in a crowded indoor gym, and despite multiple positive tests among players and school staff. The district has taken the position, despite recommendations from Centers for Disease Control and Prevention health officials, that mask-wearing was a “personal choice” and that social distancing “will not be possible to enforce” in “most cases.” Virtual enrollment for the school had filled up rapidly, so most students had no other choice but to attend class in person or risk suspension.

The public health story was itself soon eclipsed by Thursday’s news that two North Paulding students had been suspended for taking and posting other photos and a video. One of the teens, 15-year-old Hannah Watters, told BuzzFeed News she had received a five-day, out-of-school suspension for posting a photo and a video on Twitter. Watters announced Friday that her suspension had been rescinded. Meanwhile, the school went to remote learning on Thursday and Friday in order to “assess” and refine its health policies.

While the matter of Watters’ suspension seems to have been resolved, the larger question of student speech rights, especially on social media, and especially during a public health disaster, is far from settled. What Watters was doing was journalism. In addition to her viral photos, she had also been posting tallies of the proportions of students wearing masks in her classes. The viral photo she posted was captioned, “Day two at North Paulding High School. It is just as bad. We were stopped because it was jammed. We are close enough to the point where I got pushed multiple go to second block. This is not ok. Not to mention the 10% mask rate.”

School superintendent Brian Otott, who confirmed the North Paulding student suspension in an interview with the Atlanta Journal-Constitution on Thursday, initially would not say whether the discipline was connected with the photos. (He would not comment, he said, “out of regard for the student’s privacy.”) Otott told the media that the photo was taken out of context. But he also told parents and guardians in a letter that “there is no question that the photo does not look good. … Wearing a mask is a personal choice, and there is no practical way to enforce a mandate to wear them.” BuzzFeed further reported that on Wednesday, school principal Gabe Carmona threatened any student found criticizing the school on social media. “Anything that’s going on social media that’s negative or alike without permission, photography, that’s video or anything, there will be consequences,” Carmona told students over the intercom.

Put to one side that I have heard this week from numerous parents in Georgia about daughters who have been sent home from school for wearing spaghetti straps, miniskirts, or shorts deemed too short for public viewing. (How is science-based public health a matter of “personal choice” whereas girls dressing demurely is an enforceable mandate?) Let’s focus instead on why a school district thought it could suspend a student for posting newsworthy images.

Watters said she was called into the school’s office Wednesday and told she had violated three policies from the school district’s student code of conduct: She had used her phone during class time; she had used her phone during school hours for social media; and she had posted photos of minors without consent on a social media platform. But as Watters told CNN, high school students are exempt from the district policy on phones (it’s targeted toward younger students), and she didn’t post the photo until after school was over. She admitted to violating the policy on posting images of students to social media, but, of course, students violate that rule every day.

Everyone loves to mouth the platitude that students “don’t shed their First Amendment rights at the schoolhouse gate,” as set forth in the landmark 1969 Tinker case, when the Supreme Court ruled that a high school student had the right to wear a black armband to protest the Vietnam War. But Tinker’s holding has been eroded over the decades since, such that student speech can be regulated in schools to ensure that “substantial disruptions” do not occur on school grounds. Anxiety over new media, bullying, sexting, and porn have only added to the tensions felt by school administrators who try to regulate online conduct by putting blanket policies in place.

At least in theory, student speech, say, archly advocating drug use—as in the 2007 Bong Hits 4 Jesus case—can still be banned by authorities. (Posting the same sentiment from home outside of school hours is safer.) But a student raising life and death questions about matters of life and death in school hallways should be protected even under the more constrained free speech rights in public schools. Hadar Harris, executive director of the Student Press Law Center, which just filed a letter of complaint to the school in this matter, suggests as much: “We are very concerned that this is the first of many such instances that we are going to see as schools reopen and administrators try to manage the narrative of opening during a pandemic to their benefit.”

Harris also notes, “Only 14 states have legislation that protects student journalists from censorship by school officials. In the rest of the country, school officials in public schools have the ability to censor student journalists due to the Hazelwood v. Kuhlmeier decision, which carved out an exception to Tinker for student journalists.” In that 1988 case, the Supreme Court held that schools did not violate students’ First Amendment rights in killing news items about pregnancy and divorce. In an email, Harris’ colleague Mike Hiestand, the Student Press Law Center’s senior legal counsel, was more blunt: “Tinker is very much alive. (Both the [Supreme Court] decision—and the plaintiffs, who I took a free speech bus tour with a few years back.) I think it’s the school district’s legal office—if they truly think they can stop students from peacefully sharing lawful, accurate information in the way students do in 2020 about their going back to school during a global pandemic—that may be dead. Give me a break.”

Prof. RonNell Andersen Jones, who teaches First Amendment law at the University of Utah says in an email that “punishing students for speech—especially speech on pressing matters of public concern—isn’t just harmful to individual students, although it certainly is that. It’s harmful to the vibrancy of our conversations about school safety policies, because those students are some of the most important contributors to those conversations. And it’s harmful to our democracy, because we are inappropriately modeling to the next generation that government can simply stifle free speech to shelter itself from criticism.”

Professor Sonja West, who teaches First Amendment law at the University of Georgia adds that “it appears that the school punished Hannah not for legitimate pedagogical reasons but because her photos were bad PR. This is exactly the kind of move the First Amendment is meant to prohibit.” Censoring speech because it’s embarrassing may be very much in vogue these days, but that doesn’t make it constitutional. And the state of Georgia, one would be remiss not to note, ranked fifth in the country for the number of total COVID-19 cases, eighth for cases per capita, and fourth in new cases in this past week.

In an interview with CNN, Hannah Watters explained that she had posted the images early in the week because she was worried about the safety of everyone in the school building. “My biggest concern is not only about me being safe, it’s about everyone being safe, because behind every teacher, student and staff member there is a family, there are friends, and I would just want to keep everyone safe.” America’s schools are now ground zero for both ill-conceived pandemic planning and student endangerment, all dressed up under the guise of unfettered student “choice” and “freedom.” It is frankly astounding that those same same students who are free to die from a lethal virus are being singled out to be punished for chronicling it.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.