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Wednesday, August 15, 2012

Free Speech Rights in Social Media for College Students: Tatro v. U. of Minn.

I've been working on putting together a comprehensive list of social media cases with a First Amendment angle, and I recently came across the fascinating case of Tatro v. University of Minnesota, 816 N.W.2d 509 (Mn. 2012), which the Minnesota Suprem Court decided at the end of June.  In case you missed reading this case in June, as I did, here's a summary.

The University of Minnesota sanctioned Tatro, a junior in its mortuary science program, by giving her a failing grade in her anatomy lab and forcing her to undergo a psychiatric evaluation because she posted “violent fantasy” (pretty tame stuff, really) and “satiric” comments about her human cadaver on Facebook.  Posting or "blogging" about her cadaver violated the University’s “Anatomy Bequest Program” policies, the Mortuary Science Student Code of Professional Conduct, and the rules of her anatomy course. She appealed the University’s imposition of sanctions on her speech through a writ of certiorari. The Minnesota court of appeals affirmed the constitutionality of the sanctions, and the Minnesota Supreme Court granted further review and also affirmed, basing its decision on the unique nature of the professional program in which the student was enrolled. 

The Minnesota Supreme Court treated the case as one of first impression, noting that the constitutional standard governing “a university’s imposition of disciplinary sanctions for a student’s Facebook posts that violate[ ] academic program rules” is “unsettled.” Although the court of appeals had resolved the case by applying  Tinker v. Des Moines Inc. Comm. Sch.the Minnesota Supreme Court held this standard  to be inappropriate because Tatro was disciplined not for the disruptiveness of her post but for its lack of “respect, discretion, and confidentiality in connection with work on human cadavers.” The Court instead determined that the appropriate standard was whether the university had “impose[d] sanctions for Facebook posts that violate academic program rules that are narrowly tailored and directly related to established professional conduct standards.” (The Court did not cite any particular Supreme Court precedent as the basis for this standard).  Applying this new standard, the Court concluded “that dignity and respect for the human cadaver constitutes an established professional conduct standard for mortuary science professionals.”  Having previously noted that the asserted purpose of the University’s rules was to “educate students” about their ethical duties in the funeral service profession and “maintain the viability of the Anatomy Bequest Program,” the Court found the academic program rules to be narrowly tailored even though they completely barred (!) blogging about cadaver dissection or the anatomy lab.  Tatro clearly violated these rules by giving her a “cadaver a name derived from a comedy film” and engaging in “widespread dissemination” of her comments, first through Facebook and later through the news media.  Consequently, punishing her for violating them did not abridge her First Amendment rights. 

This case raises some interesting issues, which I'd explore in more detail if I weren't staring down the barrel of multiple deadlines.  Some obvious questions raised are as follows: Is a standard proscribing "disrespect" unconstitutionally vague? How can a complete ban be narrowly tailored?  (Can't help thinking of Atul Gawande's writing in this context.)  Why doesn't ordering a psychiatric evaluation for "unprofessional" speech violate the First Amendment? (The Court didn't address whether the speech constituted a "true threat.")

As a media law professor, I noted with interest that my fellow media law professor Raleigh H. Levine, from William Mitchell College of Law, was an amicus in the case for the ACLU, along with Teresa Nelson.

Posted by Lyrissa Lidsky on August 15, 2012 at 09:23 PM in Blogging, Constitutional thoughts, First Amendment, Lyrissa Lidsky, Web/Tech, Weblogs | Permalink


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Sadly, this very interesting case is done due to the death of the student in question.

Posted by: Matt Bosworth | Aug 21, 2012 3:09:00 PM

I noticed a typo in my prior comment. Social media, which is a plural noun, "magnify" rather than magnifies.People get this wrong all the time, and it is one of my pet peeves, so it is particularly galling to me that I did it, too. I always remind myself and my Media Law students: The Press is. The Media are.

Posted by: Lyrissa | Aug 19, 2012 11:54:30 AM

Social media magnifies the potential for this kind of event to happen, both because of its ubiquitousness and its culture of spontaneity and informality. So, yes, the same result might have occurred if she'd published it in a newspaper, but she probably wouldn't have. Moreover, how one should interpret the speech and whether it is "disrespectful" or "unprofessional" or even threatening may depend in part on the medium; the court seemed to think that posting on Facebook about anything job related was per se unprofessional, though it identified "widespread dissemination" as the problem.

Posted by: Lyrissa | Aug 16, 2012 9:14:01 AM

Is this really about social media per se? Would the result have been different if she had, say, written the same thing in a newspaper column?

Posted by: Howard Wasserman | Aug 15, 2012 10:47:53 PM

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