Speech and punishment: Snapchat incident raises First Amendment questions for students

May 16—TRAVERSE CITY — Black arm bands protesting the Vietnam War. A banner emblazoned with "Bong Hits 4 Jesus." Middle fingers and f-bombs dropped on social media.

The battle between a student's right to free speech and a school district's power to punish students has been fraught with First Amendment implications since the late 1960s.

The United States Supreme Court, in Tinker vs. Des Moines, handed down a landmark ruling in 1969 that definitively said students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." It also said speech off campus could not be regulated by the school. The 7-2 decision supporting five students' right to protest the Vietnam War came with the qualification that school officials can regulate speech if it is deemed disruptive to school.

The 2007 U.S. Supreme Court decision in Morse vs. Frederick extended the "schoolhouse gate" when it was ruled district officials did not suppress free speech after a principal suspended a student for his "Bong Hits 4 Jesus" protest, which was held across the street from a school-sponsored event.

The advent of the internet and social media as well as the popularity of its use among school-aged children once again has scholars and legal experts questioning the location of the aforementioned gate — both nationally and locally.

The U.S. Supreme Court heard oral arguments late last Month in Mahanoy Area School District vs. B.L., who has been identified as Brandi Levy, a high school cheerleader within the district. Levy went on a private Snapchat group after she was rejected from the varsity cheerleading squad and posted a photo of herself flashing the middle finger with the caption "F- — school, f- — softball, f- — cheer, f- — everything." Levy was suspended from cheerleading for one year because of the profanity-laced post.

Lower courts split on whether or not the school district was within its right to discipline Levy. The impending Supreme Court ruling, which is expected this summer, is seen by free speech and First Amendment advocates as the most pivotal decision regarding student speech since Tinker.

Northern Michigan is in the midst of its own controversial Snapchat incident that could have free speech implications as well. Students from at least three area high schools, including Traverse City Central and Traverse City West, participated in a Snapchat group titled "Slave Trade" last month.

The exchange of messages included a mock slave auction, calls for genocide against Blacks and another Holocaust as well as a threat of murder against another student. Pictures viewed by the Record-Eagle showed the messages included crude and sexual comments, racial and anti-LGBTQ slurs, demeaning comments about students with autism and racist stereotypes.

Traverse City Area Public Schools officials continue to investigate the incident, but the Grand Traverse County Prosecutor's Office declined to pursue criminal charges against those involved because the messages were never meant to be viewed outside of the private Snapchat group. The student responsible for creating the group told Grand Traverse County sheriff's deputies that the messages were "meant to be a joke," according to the incident report.

Traverse City Attorney Grant Parsons said writing off the messages as a joke or excusing the content because it was only supposed to be shared among a select few is not just a slippery slope, it is a "sheer cliff." Parsons pointed to recent language that ignited attacks against Asian Americans and spurred the siege on the U.S. Capitol Building.

"Words are very close to the surface of violence," Parsons said.

Both the American Civil Liberties Union and the Student Press Law Center have thrown their support behind Levy and her right to speak out against her school online, but both also decried the "Slave Trade" Snapchat.

ACLU of Michigan Racial Justice Project Staff Attorney Mark Fancher declined to speak on the legal implications, but he called the messages "highly racist and deeply disturbing."

Mike Hiestand, senior legal counsel with the Student Law Press Center, sees the Snapchat group as more of an act than just simple speech. Even if it is viewed as speech, Hiestand said the material likely falls within the exceptions that are not protected by the First Amendment. That gives TCAPS "some wiggle room" to discipline the students.

But just as Parsons spoke of slippery slopes, Heistand worries about them as well when it comes to regulating student speech.

"You have to be really careful if you're going to give school officials the right to go after one particular student for something because that gives them the right to go after a lot of other speech that would be more consequential," he said. "There is so much speech out there, and you have to be careful about what you sweep up."

The Matt Epling Safe School Law requires all Michigan school districts to adopt anti-bullying policies that outline procedures to report incidents of speech that have an "actual or substantial detrimental effect" on a student's physical or mental health. School districts can punish that behavior without violating a student's right to free speech, and cyber-bullying policies put in place allow districts to extend their reach off campus.

Attorney David Nacht said speech can be regulated when it causes harm to the community.

He sees a great deal of harm in the "Slave Trade" Snapchat.

"It's hard to imagine how this kind of behavior isn't intentionally cruel," Nacht said, adding that TCAPS has to balance the First Amendment rights of the speaker with the impact the speech has the person being discussed. "What should be tolerated in silence and speech that others find offensive? Where is that line?"

Any time that line is crossed or stepped on, Elena Khutaba said the school needs to get involved.

The Traverse City Central senior is the committee chair of Students Together Against Negative Decisions. She said any actions from students hurting other students or making them scared and uncomfortable at school cannot go unaddressed.

Khutaba and her classmates were saddened and disappointed when they heard about the Snapchat incident. She said many were angry when they found out the messages came from underclassmen.

"That's not what we want coming into Central. That's not the atmosphere we want being created here," Khutaba said. "We are all past that."

Khutaba doesn't see claims of free speech as even approaching a valid argument to excuse the behavior. She said it wasn't free speech, it was "pure hate speech."

"You have the right to swing your arm as much as you want, just as long as it doesn't hit someone in the face," Khutaba said. "Everyone has the right to their opinions, but there has to be a limit when it's hurting other people."

TCAPS officials have not released details about discipline taken against the students. Those details likely will never be made public.

TCAPS Board President Scott Newman-Bale said it is possible the district will only announce that the matter has been addressed and could give a simple yes-or-no answer about if the students were punished.

Newman-Bale said the students' due process rights must be protected.

"We all want an answer. We all want this dealt with," he said. "But at the same time, due process is one of the most fundamental rights in the U.S."