The United States Supreme Court may hear a case that involves the intersection of the 1st Amendment right to free speech with the right to post on social media.  The case is Hunt v. Board of Regents of the University of New Mexico which may set a legal standard for students’ freedom of speech when they use social media — an issue that has frequently been litigated in recent years with no clear legal standard.  The issue in this case is whether a student’s outrageous and inappropriate Facebook post was a content based restriction on freedom of speech that is prohibited by the First Amendment regardless of how offensive the message.

What did Paul Hunt say on Facebook to incur punishment by the University?  

Paul Hunt was a 24-year-old medical school student at the University of New Mexico School of Medicine in 2012. He stated that Democrats were “[d]isgusting, immoral, and horrific,” and “sick, disgusting people.” He said Democrats were “WORSE than the Germans during WW2,” Hunt posted a comment on his personal Facebook news feed stating Democrats view on abortion were “disgusting, immoral, and horrific.” He said Democrats were “WORSE than the Germans during WW2,” The comment was reported to administrators at the medical college, who told Hunt he was in violation of the schools “Respectful Campus Policy,” which made it a punishable disciplinary offense to engage in “untrue allegations, unduly inflammatory statements or unduly personal attacks.”

What did his university do about this post?

Hunt was given a “professional enhancement prescription” and notice that the professionalism violation would be noted in the recommendation letter the Dean would provide to residency training programs, but that in the future Hunt could petition to remove the notation, and if Hunt believed the decision and corrective action were flawed, he could ask for a review of the decision from the Senior Associate Dean of Education. He did not request a review. Instead, he chose to complete the terms of the prescribed corrective action:

 

(1) a reflective writing assignment on the public expression of political beliefs by physicians,

(2) an apology letter, which Petitioner could present to anyone of his choice, or no one,

(3) rewriting the Facebook post in a professionally appropriate way, and

(4) faculty mentorship.

 

Hunt successfully completed all aspects of the professional enhancement prescription. Hunt then sought removal of the notation before his fourth year of medical school began. There was a factual dispute whether the respondents declined to remove the notation.

How did this case get to Court?

Hunt then sued the Board of Regents of the University of New Mexico, as well as named faculty and Board of Regents members individually, claiming a violation of his free speech right under the First Amendment and his due process rights under the Fourteenth Amendment.

Hunt filed a lawsuit in New Mexico District Court alleging violations of his First Amendment rights (freedom of speech, viewpoint discrimination, and retaliation) and violation of his right to due process. The District Court granted Defendant’s motion for summary judgment, on the grounds that the Board of Regents was not a person for purposes of §1983 and that the individual defendants were entitled to qualified immunity. There was no clear precedent defining First Amendment protections in situations where students’ online speech conflicted with university standards of professionalism. Qualified immunity shields public officials from being liable for violating someone’s constitutional rights. It held that, because there were no clear cases involving student internet‐​speech and universities, the board members could not have known they were violating Mr. Hunt’s rights.  The 10th Circuit affirmed finding that the law was not clear on whether the restriction violated Hunt’s 1st Amendment rights and affirmed the granting of qualified immunity.

Hunt filed a petition for Certiorari before the United States Supreme Court which is pending review.

Did the University impose a content based Restriction on Hunt’s Speech?  

Hunt argued that the University cannot punish him for the content of his speech.  The United States Supreme Court held in a case called Rosenberger v. Rectors of the Univ of Virginia, 515 U.S. 819 (1995), that content based restriction on speech are unconstitutional.  In that case, the University tried to deny funding for a religious group on campus.  The Court held that funds cannot be denied based on the content of the group’s message.  Further, the Court noted that Government regulations cannot favor the content of one message over another.  The Supreme Court in Rosenberger held that Government must abstain from regulating speech when the motivation is ideological, opinion or perspective of the speaker.

Hunt has a strong argument that he was published for the content of his speech as the University was not monitoring or censoring the Facebook posts of other students.  This post caught the eye of faculty who did not like the content of the post.  The University was punishing Hunt because listeners to the speech would be upset.  The University would have to show that the restriction is narrowly tailored to serve a compelling state interest.  Prior, First Amendment cases have given the right for public employees to speak of matters of public concern as private citizens.

Recently, the United States Supreme Court found a 1st Amendment violation in National Institute of Family Life v. Becerra, 138 S.Ct. 2361 (2018) where California tried to mandate that a pro-life group provided information about the availability of subsidized abortions for those with low income.  The United States Supreme Court held that the Government was regulating the content of the message of what the speaker could and could not say.  The Court declined to view the notice as similar to commercial speech where the State was trying to disclose factual information, but the Court viewed the notice as regulating the content of the communication.

Speech that is constitutionally protected on campus is protected off campus as well. Generally, universities may discipline students for off-campus conduct that impacts the mission of the school or substantially disrupts the school or its students. Offensive, or hateful speech protected by the First Amendment might violate the standards of conduct in a profession, including conduct in an educational program preparing students for that profession. When this occurs, the college or university has the ability to regulate that speech and discipline the speaker.  Hunt argued that case law from the United States Supreme Court protects similar speech for undergraduates and high school students.

1st Amendment rights of students can be limited on school grounds and school sponsored events when it will interfere with the ability of the school to teach students and maintain class discipline.  Hunt argued that New Mexico was going beyond this by trying to regulate speech outside of the school environment.

 

 

Free speech laws and social media posts

Free Speech Laws and social media are evolving as courts acts quickly to adapt free speech jurisprudence to new technologies.

Social media content violated a school’s code of conduct in a case from the 9th Circuit Keefe v. Adams.  The Court held that a college could expel a student for off-campus speech on social media without violating his First Amendment rights where the speech was directed at classmates, involved conduct at the school, and violated the Student Code of Conduct.  Hunt’s case falls outside of this case because it was not directed at any classmate but was purely expressing his opinion.

The US Supreme Court should grant Certiorari

There are many differing decisions on this issue from lowers courts which should promote the United States Supreme Court to grant certiorari to provide clarity in this area of law. The United States Supreme Court should take this case as it amount to a content restriction on speech, regardless of how offensive the content may have been.  Mr. Hunt’s content may have caused him public humiliation or shame for the foolishness of its content, but the 1st Amendment grants all the right to free speech.  I would hope that the United States Supreme Court review this case as it raises an interesting issue regardless the 1st Amendment and Social Media.  To read the Petition in the Hunt case you can find it on the Scotus Blog.

To learn more about current legal issues please Follow Attorney DelSignore on Facebook.