Can my school punish me for posting offensive tweets while I was at home?

For starters, racially offensive speech is rude, unkind, and unproductive. It can cause people pain and sorrow and be downright hateful. But does that mean it does not deserve protection from the First Amendment? Not necessarily. The Supreme Court has protected offensive speech before even though people do not find it agreeable. The First Amendment is designed to protect people’s right to speech, good or bad. So, hateful speech that is demeaning toward a certain race, gender, ethnicity, or religion, etc., can be protected. But, not always! 

Here are a few circumstances where you can be punished for your speech: (1) if it was targeted and violent toward someone; (2) if it caused a substantial disruption at your school; or (3) if it incited people to violence. We’ll walk through each of these. Regarding the tweet, we don’t think you will get in trouble because it seems none of these three scenarios happened. If they did, then you could be punished. That can range from getting kicked off a team, out of a club, suspended, or even expelled. 

You said something offensive, but you did not threaten violence. That is important.

School officials have an interest in protecting their students, especially given that school shootings happen around the U.S. with frightening frequency. On its face, this tweet did not threaten violence toward someone, and it did not suggest violence toward the school or the school district. Speech that targets violence towards a specific person or well-identified group, whether on or off campus, is not protected under the First Amendment.

Another thing you should consider too is whether previous threats of violence happened at your school. Let’s say there was a bomb threat at your school last year. Because there is a history of violence or violent threats, your school officials can further justify punishment if your tweet contained something suggesting violence toward someone or the school. If there is a risk of violence, then school officials can act to prevent that, even if no one in particular was named. 

Basically, this is what we are saying: racist speech that crosses the line into suggesting violence is not okay, especially when there have been threats in the past. Racially offensive tweets can walk a fine line between being just insensitive and being incendiary. Don’t walk that line. 

You were reported to your principal, but is that a “substantial disruption?” 

Well, your speech got you sent to the principal because other students reported you. Based on all the First Amendment stuff we’ve studied here at the McLellan, according to the United States Supreme Court, that does not amount to a “substantial disruption” that could lead to your punishment but it’s not totally out of the realm of possibility.

Why? When we talk about a substantial disruption, we are talking about an interference with the school environment that is more than just a few murmurs in the hallways. A substantial disruption would prevent students from learning and teachers from teaching. For example, if teachers had trouble controlling their classrooms or a fight broke out between students because of your tweet, then that would look like a substantial disruption that could get you in trouble. From what’s happened with your tweet, some students reporting you to the principal does not seem to amount to a substantial disruption. But, if these students derailed the classroom conversation and/or interrupted class to go talk to the principal, then that would begin to look like a substantial disruption. 

Think of it like a balance scale. The more distractions and disruptions to the school that you stack on one side, the more it leans toward a “substantial disruption.” 

That’s not all, though. There’s a concept added onto this called a forecast of a substantial disruption. If you are thinking, “oh, a forecast like a weather forecast?” Then, yeah, it’s pretty similar in the way that you can plan for what might come. If an administrator can plan for—or forecast—a disruption based on your speech, then that might take it out of First Amendment protection too. 

For this to happen, an administrator needs to be able to support their forecast with evidence of past similar events. Let’s say a student at your high school posted a few Tik Toks about how they hate a certain race of students, and this led to a couple of huge fights. If a school official can point to evidence or a history of past disruptions, then this can give rise to a forecast of a substantial disruption and could allow for your racially offensive tweet to be shut down and result in your punishment. Administrators need to be able to link the past incidents to your tweet, and if they can do that, then your speech may not be protected. In our example, we have offensive social media posts that are targeted at a certain race. There’s the link they could look for. It’s also important that you deleted the tweet and apologized because that means it was less likely to be accessed at school and cause any sort of disruption. 

Racist speech that incites action—how do we navigate that?

An unprotected form of speech is called incitement speech. Incitement speech is speech that causes people to react violently toward someone. You may have heard of the idea of shouting “fire” in a theater when there’s actually no fire, and it’s similar to that. If what you say encourages someone to be violent or act illegally, and that illegal, violent act is likely to occur shortly after you make the statement, then that is going to be unprotected speech under the First Amendment.

Your tweet linked Africans to smelling like pigs and river water. It is offensive. But, it did not encourage violence toward Africans or other illegal activity, which is why this is not incitement speech. But we do want to be clear about that fine line! We want to reiterate that the First Amendment allows you to be offensive, but what you should take away from this Q&A is that there are a lot of factors that can weigh in your favor and against you and, in the end, such speech is simply hurtful and unproductive.