Free Speech Off Campus Must Be Protected
Hard cases, as Justice Oliver Wendell Holmes cautioned in a 1904 Supreme Court opinion, make bad law. What Holmes meant is that cases with distasteful facts and unlikeable parties tempt judges to back into the desired outcome without regard for the broader legal principles at stake. When that happens, future parties with more sympathetic cases become collateral damage.
Tatro v. University of Minnesota is one of those hard cases. If the justices of the Minnesota Supreme Court lose sight of the larger constitutional issues, the outcome in the case could give colleges virtually limitless authority to silence speech critical of their programs, no matter where it is uttered.
The case began in 2010 when Amanda Tatro was called before the student-conduct board at the University of Minnesota over a series of postings on her personal Facebook page. On her Facebook wall, Tatro had joked about how she and her fellow mortuary-science students had nicknamed their laboratory cadaver “Bernie,” and about stabbing someone with a dissecting knife (a reference, her friends knew, to an ex-boyfriend).
A classmate forwarded the postings to University of Minnesota authorities. A criminal investigation concluded that Tatro had no intent to harm anyone, but the university imposed disciplinary charges anyway, including a failing grade and a mandatory psychiatric exam.
Tatro challenged the penalties, unsuccessfully, before the Minnesota Court of Appeals. She is appealing to the Minnesota Supreme Court, which is scheduled to hear arguments on February 8. The university’s amicus defenders include the head table of academe: the American Council on Education, the Association of American Universities, the Association of Public and Land-Grant Universities, and others. My organization, the Student Press Law Center, co-authored a brief in support of Tatro.
What is important about the Tatro case is not what Amanda said, but why the University of Minnesota believes it may regulate what students say on social-networking pages on their personal time.
The university argues—and the Court of Appeals accepted—that Tatro’s speech was unprotected by the First Amendment because it prompted “disruptive” complaints from supporters of the mortuary-sciences program whose families had donated their bodies for dissection or pledged to do so.
The “disruption” standard is derived from Tinker v. Des Moines Independent Community School District (1969), in which the Supreme Court ruled that schools may regulate speech only if it portends “material and substantial disruption” of their activities. Lawyers nationwide are attempting, with some success, to persuade courts and legislators that, because the Internet makes off-campus speech theoretically viewable anywhere, speech about a school or college is equivalent to speech inside of the institution.