Student’s Facebook Posts Not Protected by 1st Amendment

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By Patrick Gregory

Oct. 26 — A student’s allegedly threatening Facebook posts aren’t protected by the First Amendment, the U.S. Court of Appeals for the Eighth Circuit held Oct. 26 ( Keefe v. Adams , 2016 BL 356001, 8th Cir., No. 14-2988, 10/26/16 ).

Central Lakes College in Minnesota removed Craig Keefe from his nursing program after students complained about the posts.

Professional school students can be punished for speech even if it occurs off-campus, the court found in a decision by Judge James B. Loken, joined by Judge Bobby E. Shepherd.

Judge Jane Kelly disagreed in a partial dissent.

Free Speech

Keefe posted on Facebook that there wasn’t “enough whiskey to control” his anger at a school project teammate, the court said.

He also posted that he was going to “give someone a hemopneumothorax”—a lung puncturing—with an electric pencil sharpener, the court said.

Keefe argued that he couldn’t be punished for off-campus speech unless it was “unprotected by the First Amendment, such as obscenity,” the court said.

The court disagreed. A professional school’s educators and administrators “have discretion to require compliance with recognized standards of the profession.”

Students can “demonstrate an unacceptable lack of professionalism off campus,” the court said.

Kelly’s dissent questioned whether the posts were related to academic assignments and therefore punishable by the school.

The posts weren’t “made as part of fulfilling a program requirement and did not express an intention to break specific curricular rules,” Kelly said.

Judge Kermit E. Bye was initially assigned to the case but has since resigned from active participation. Judge Shepherd was randomly selected to replace Bye.

Jordan S. Kushner of Minneapolis represented Keefe.

The Minnesota attorney general’s office represented the administrators.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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