One of the most pressing issues in student-speech jurisprudence (K-12) concerns how far school officials’ authority extends to off-campus, online speech by students that allegedly causes some commotion at school.   

A lawsuit filed against Freeland School District in Michigan provides a pristine example of the controversy and unsettled nature of this area of law. A 14-year-old student, identified in court papers as “H.K.,” posted a fake Instagram account that used a close approximation of his biology teacher’s name, Steven M. Schmidt.

H.K. posted a picture of a gasoline-pump nozzle with an embedded hypodermic needle along with the statement: “Watch out guys, I am concerned for everyone’s safety.” The post does not seem close to defamation or a true threat or any other area of unprotected speech in First Amendment law.

However, H.K. also gave passwords to two other students who posted things on the Instagram account as well.

The biology teacher, probably less than amused by the account, informed his school principal, Traci L. Smith.  She conducted an investigation into the account and even contacted the Tittabawassee Township Police Department. 

Student suspended after parody Instagram account related to biology teacher

School officials, including Smith, suspended H.K. and initiated expulsion proceedings against H.K., accusing him of gross misconduct, the willful impersonation of a staff member, and the sharing of login information that led to threats. 

H.K., through his father Jason Kutchinski, has filed a lawsuit, Kutchinski v. Freeland Community  School District, asserting a violation of H.K.’s First Amendment rights.

The lawsuit emphasizes that H.K. created the account at home on his Xbox and never brought copies of any posts to school. The suit also emphasizes that other students, not H.K., authored some of the more troubling posts to school officials. 

Student alleges punishment was retaliation for protected First Amendment speech

Further, the lawsuit stresses that none of the Instagram posts created a substantial disruption of school activities, referencing the leading legal standard in student K-12 law. The U.S. Supreme Court established more than 50 years ago in Tinker v. Des Moines Independent t Community School District (1969) that public school officials cannot punish student speech unless they can reasonably forecast that the student speech will cause a substantial disruption of school activities. 

The lawsuit also relies on the 3rd U.S. Circuit Court of Appeal’s decision in J.S. v. Blue Mountain School District (2011), in which the 3rd Circuit ruled that school officials exceeded their authority in punishing two middle school students for a parody on social media. 

“Defendants’ acts and resulting punishment of H.K. for creating an off-campus parody Instagram account was done in retaliation after exercising constitutionally protected activity,” the lawsuit reads. 

The lawsuit further notes that “Defendants had no reasonable apprehension of disturbance from students at Freeland Community School District.” 

The case is worth watching, because the issue of school authority over off-campus student speech remains so unsettled.   

David L. Hudson, Jr. is a First Amendment Fellow at the Freedom Forum Institute and a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017).