Reporting: Supreme Court Refuses To Hear Social Media First Amendment Case

In Fall 2012, Craig Keefe was removed from the Nursing Program at Central Lakes College in Minnesota for posts made outside of class on his personal Facebook account. After a denied appeal by the school, Keefe sued for violation of his right to free speech and his right to due process.

One of Keefe’s posts included the text “Im going to take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to long. I might need some anger management,” according to a ruling by 8th U.S. Circuit Court of Appeals, filed in October.

On Monday, the U.S. Supreme Court denied petitions to hear the case.

The denial means the 8th Circuit’s 2-1 ruling against Keefe will stand.

Frank Lomonte, executive director of the Student Press Law Center, said he was disappointed in the Supreme Court’s decision.

“We’ve got to get clarification from the Supreme Court over where a college’s authority over student speech begins and ends, and I think this was a real missed opportunity to get that,” Lomonte said.

Monday’s decision also means university students concerned about what is and isn’t protected by the First Amendment regarding social media might have to wait a while before the court provides any further clarity, Lomonte said.

“I can’t say right now that I see anything on the horizon that could be that ‘test case,'” Lomonte said. “What I think the Supreme Court is telling us right now is that they are not interested in wading into the area of social media.”

Two issues were central to the case: freedom of speech, including what type of speech is and isn’t protected under the First Amendment and especially regarding social media, and due process rights of students in academic settings.

The first dealt with whether or not posts on social media could be used to remove a student from an academic program when they are not related to in-class academic conduct. Students in the program complained to university officials saying they felt posts by Keefe made them uncomfortable and, in at least one case, “unable to function in the same physical space” as Keefe, according to the 8th Circuit’s ruling.

In the ruling, the majority wrote that lower courts had, in their rulings, “conclusively established that the posts were directed at classmates, involved their conduct in Nursing Program, and included a physical threat related to their medical studies.”

In doing so, the court opened Keefe’s posts to possible interpretation as disruptive to the academic learning environment, and thus possibly unprotected by the First Amendment because of previous court interpretations of the Amendment.

Also important to the case was the fact that the school did not expel Keefe from the university, but instead told him he would need to change academic programs, toward which his previously accomplished Nursing credits would be counted as electives.

Judge Loken, writing the opinion of the majority, cited that action by the college as reason for why the court doubted Keefe had a “cause of action” regarding due process.

The college had argued it could remove Keefe from the program because students agreed in writing to follow the American Nurses Association Code of Ethics when enrolling in the program. The code in part states:

“When acting within one’s role as a professional, the nurse recognizes and maintains boundaries that establish appropriate limits to relationships. . . . In this way, nurse- patient and nurse-colleague relationships differ from those that are purely personal and unstructured, such as friendship. . . . In all encounters, nurses are responsible for retaining their professional boundaries,” According to the ruling.

Also at issue was whether or not public, state colleges and universities could adopt professional codes of ethics by which to govern their academic programs.

Ultimately, the court ruled the college could remove Keefe from the academic program for unprofessional conduct, even which had occurred off campus, as long as the administrations actions “are legitimately related to pedagogical concerns,” the 8th Circuit said, citing the Supreme Court’s ruling in the 1988 case Hazelwood v. Kuhlmeier.

The Student Press Law Center filed a brief on March 27 urging the high court to hear it, arguing in favor of Keefe, saying his right to freedom of speech was violated. Students may not generally be disciplined for conduct outside of the classroom unless it interferes with the academic environment.

“The court has ruled that time and time again,” Lomonte said.

Now, however, Lomonte said, the ruling and the Supreme Court’s decision not to hear the case means free speech is among the least protected rights college students have.

“The government can’t punish you for unprofessional speech anywhere except apparently in college now,” Lomonte said.

While the comments by Keefe cited in the case might have been interpreted as threats by his fellow students, Lomonte said the school did not use this as a grounds for dismissing Keefe.

Instead, they removed him from the Nursing Program for unprofessionalism and for violating the ethical code of of his anticipated profession.

“I think they forfeited that argument, that they needed to remove him for the safety of other students,” Lomonte said. “They didn’t do any of the normal things they would normally do if they thought he was violent.”

Such steps might have included removing Keefe from the university as a whole, rather than just requiring him to transfer to another program, Lomonte said. Instead, the court allowed Keefe’s life to be changed in a way he said he wasn’t sure they took completely seriously.

“This guy potentially lost his entire career,” Lomonte said.



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