by Bernard D. Nomberg, Partner, The Nomberg Law Firm
Social media dominates the lives of teenagers. Thumbs and foreheads is all you see with most of them! Today’s typical high schooler sees no limits or consequences on their perceived right to post or say what they want on social media. Without proper education (or attitude) this is creating more and more real world problems for them. As awareness of divisive and hateful social media posts continues to increase, the extent that the social media posts could lead to civil or criminal repercussions is gaining more attention.
On March 4th, Alabama high school students posted a racially contentious social media video that attracted national news attention. The video consisted of a group of suburban white students going back and forth talking in a very insulting manner about the Holocaust, Jewish people, African-Americans, and using the n-word multiple times. The incident has again prompted the discussion of whether the students face any form of punishment from their high school for this video. In addition, whether the students face any legal problems, either in a civil suit or criminal charges.
The video was made at a private residence and not part of any school function. So far the school has taken the position that although the conduct was not part of a school function, it still had a direct conflict with the school system’s values as well as repercussions to the student body. The school officials are still investigating the situation and looking at options under their Code of Student conduct. In the week after it was posted, this video had already been viewed more than two million times. Thousands of shares and comments followed. Additionally, at least one business may be impacted as well.
Right now, one of the highest priorities in education is eliminating discrimination and bullying. A school system can investigate imposing disciplinary actions against students if their actions rise to the level of hate speech or discrimination specifically directed against fellow classmates. The First Amendment right to free speech gives some protection to the students. The struggle between what is hate speech verses protected free speech is what makes this such a tough issue. Clearly schools and the public in general do not condone or desire to allow this behavior to stand without punishment. The question is whether the speech in social media posts are so directly linked to other students at the school to allow for school discipline, such as suspension or expulsion. If the video is substantially disruptive, threatening and harassing as to school’s teachers or other students then the school could seek to discipline the students. The students could challenge the action.
Legal actions throughout the country have ruled for schools in some instances upholding the discipline and others ruling for the students. At this point the United States Supreme Court has not ruled on the issue of off-campus speech and associated school discipline. More recently, in 2016, the US Supreme Court declined to hear the case of the former high school rapper, Taylor Bell, who was suspended for posting online a profanity-filled rap about two school coaches — despite splintered decisions from lower courts about students’ off-campus, online speech and the reach of school officials’ authority and discipline.
The action and conduct of the students could be deemed hate speech. Hate speech is speech which attacks a person or group based on attributes of race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity. Criminal prosecution can also be instituted for threatening hate speech. Once again, the protections of free speech under the First Amendment are directly at issue. At best, the issue of whether the video could lead to prosecution is very much in doubt.
Although the video does not appear to target one specific individual, if someone is specifically harassed or attacked in a social media post the person so attacked could bring a civil claim for damages in a civil action for harassment or possible emotional distress.
Social media posts whether made in jest or with hateful intentions can lead to various consequences. A social media post has long standing ramifications. The more egregious the post the more likely that the students could face discipline. Education of young people (adults too!) is vitally important to show them the potential consequences of their actions. However, like anything else in life, until it becomes are issue for that teen, it may too late to correct their harmful actions.
Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.