Many years ago the United States Supreme Court held that students do not “shed their Constitutional rights to freedom of speech or expression at the schoolhouse gate.” In that landmark case of Tinker v. Des Moines Independent Community School District, the Court held that the First Amendment to the United States Constitution applies to schools and that school officials cannot censor student speech unless it disrupts the educational process. This generally means that students can speak, write articles, assemble together to form groups, and petition school officials to make changes to the school system.
But there is an important distinction between public and private school students under the First Amendment. The First Amendment—and other provisions of the first ten amendments to the U.S. Constitution, known as the Bill of Rights—limit the government’s ability to restrict or interfere with those individual rights. Because public school officials are government officials (known as state actors) they are subject to these Constitutional limitations on government actions. But private school officials are not government officials and the First Amendment (and other provisions of the Bill of Rights) do not limit the ability of private school officials to regulate or restrict student speech.
In addition to the U.S. Constitution, many state constitutions include provisions that protect freedom of speech or expression—and some state constitutions have been interpreted by the state courts to provide greater protection for freedom of speech than the U.S. Constitution. A few states have enacted laws (statutes) that provide greater protection for freedom of speech.
On-Campus Speech v. Off-Campus Speech
There is an important distinction between a school’s ability to regulate or restrict speech that occurs on school grounds (on-campus speech) and the school’s ability to regulate or restrict speech that does not occur on school grounds (off-campus speech). Off-campus speech may include verbal speech; text, chat, or other messages between students; social media posts; or a student’s private journal or diary entries.
Courts have generally held that schools may regulate off-campus speech when there is a sufficient connection (nexus) between the speech and the school. And there is always a sufficient nexus when the school determines that it faces a credible, identifiable threat of school violence. A student’s lack of intent to communicate off-campus speech to any other party is relevant to the determination of whether the speech constitutes a credible threat but is not dispositive.
In Maine, as in all states, students in public schools retain their First Amendment rights to freedom of speech or expression, as established by the Supreme Court in Tinker v. Des Moines Independent Community School District. Public school officials, as state actors, cannot censor student speech unless it disrupts the educational process. This protection allows students to engage in various forms of expression, including speaking, writing, assembling, and petitioning for changes within the school system. However, these First Amendment protections do not apply to private school students, as private school officials are not considered government officials. Maine's state constitution also protects freedom of speech, and in some cases, may offer broader protections than the U.S. Constitution. When it comes to off-campus speech, such as social media posts or private communications, Maine schools may regulate this speech if there is a clear connection to the school environment, especially if the speech poses a credible threat of school violence. The intent of the student in off-campus speech is considered but is not the sole factor in determining if the speech constitutes a credible threat.
