By: Shauna Baker-Karl, Staff Member Vol. 19
Introduction
A college student is asking the Supreme Court to decide whether he has a First Amendment right to be offensive in a virtual classroom.
The Second Circuit recently held that a professor at a public college could delete a student’s message board post without violating the student’s First Amendment right to freedom of expression. According to the Second Circuit, the professor’s opinion that the post was “offensive” was a sufficient reason to remove the post without running afoul of the First Amendment’s protections. But in a world where education from grade school to doctorates has shifted online, Collins v. Putt gives the Supreme Court the chance to answer a far broader and more pressing question: In a virtual world, do professors have free reign to moderate offensiveness and dissent out of the classroom?
The Case
In 2017, Jeremy Collins enrolled in an online Communications 101 course at Charter Oak State College. Charter Oak is a public college that provides its classes through an exclusively online platform. Its goal is to provide the college classroom experience in a virtual space.
Communications 101 was taught by Rebecca Putt. Part of the coursework asked students to watch videos of people interacting, then post comments to an online message board critiquing those interactions. One video depicted a young man conversing with, then assisting, an elderly person with disabilities.
But rather than evaluate the content of the conversation and the interaction between the two characters, Collins took to the class message board and posted a response that, by Putt’s measure, critiqued the assignment and the characters themselves. Collins called the elderly man “cranky” and “self pitying,” while declaring that the video itself was “ridiculous” and “could only take place in an alternate universe.”
Putt deleted Collins’s comment and the string of responses it provoked, telling Collins in an email that she would not tolerate posts that “some might find… offensive.” Collins, in a fiery response, told Pull she better take a lesson in the civil rights of her students and sued for his First Amendment right to express his offensive opinion in Professor Putt’s virtual classroom.
But Collins got a lesson of his own when the District Court of Connecticut ruled that Putt had the right to moderate content in her virtual classroom on the grounds that she found it offensive. The district court applied the standard from Hazelwood, which allows educators to exercise “editorial control over the… content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” The Second Circuit affirmed.
The District Court applied Hazelwood over the objections of Collins, who insisted that Tinker was the more appropriate standard. Tinker is the applicable standard for student speech that “happens to occur on school premises,” and is the more protective of the two student speech standards. Neither the District Court of Connecticut nor the Second Circuit was convinced that a message board post made in response to an assignment constituted independent student expression that only happened to occur on a school’s (virtual) premises. Instead, it “[bore] the hallmarks of school sponsorship”; it was made in response to a class assignment, turned in to a faculty member, posted to a class message board, and part of a pedological tool to teach communications. In doing so, the Circuit Court signaled that Tinker is the appropriate test only for speech that occurs on a school’s campus. Hazelwood, in contrast, should be applied where speech occurs off-campus but can be characterized as school-sponsored. The Second Circuit’s message is clear: regardless of the extent to which speech is school-sponsored, it must occur within the physical confines of a campus to be analyzed under Tinker.
Collins petitioned the Supreme Court for certiorari in January 2021. With Collins’s case, the Court has an opportunity to set a precedent that would be vital in a time where we have turned to online education in the face of uncertainty about a return to the traditional classroom. Without intervention from the Court, students risk learning in an online world where dissention and offensiveness are airbrushed from the learning environment.
The Crucial Question: Virtual Classroom Moderation
Feelings of discomfort, unease, offense, and even anger are hallmarks of the traditional educational experience. And while educators can exert a great deal of control of their classrooms- no First Amendment standard proports to give students carte blanche to express themselves in the classroom- spoken words cannot be unsaid or unheard. Whether they are blurted out in the heat of the moment, called out carelessly, or offered into a discussion with the purpose of provoking thought or causing offense, spoken words are a bell that cannot be unrung.
Part of society’s expectation for our colleagues, our peers, and our friends is knowing that they can handle the uncomfortable, the messy, and, sometimes, the cruel in stride. For many people the classroom, far from being a safe space of moderated content, is among the most crucial places we learn to cope with hearing and responding to the unexpected, the bizarre, the uninformed, and yes, the offensive. This is why the Second Circuit’s decision in Collins v. Putt is troubling, and why it is important that the Supreme Court steps in to redirect the discussion about the moderation of content in the virtual classroom. While necessity has made the classroom virtual, it cannot also make it a place of government-approved pre-moderation of content, with educators striving to remove offense from the educational experience. Society relies too much on our ability to offend one another, to provoke thoughtful responses by engendering disagreement. In the classroom as in society at large, this is not our weakness but our strength.
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