Last month, the University of Tennessee agreed to a $250,000 settlement with a doctoral student in its College of Pharmacy following a lawsuit claiming the university violated her First Amendment rights in its attempt to expel her for her personal social media posts.
Kimberly Diei posted two separate tweets on her account using the pseudonym KimmyKasi: one discussed lyrics to the song “WAP” by Cardi B and Megan Thee Stallion, while another referenced Beyoncé lyrics with a selfie. Diei had previously been investigated for violating university policy with “crude” and “sexual” posts; these tweets led to a second investigation into Diei’s social media accounts.
In August 2020, the College of Pharmacy’s Professional Conduct Committee contacted Diei about the second investigation. On Aug. 31, Greg Greubel, staff attorney at the Foundation for Individual Rights and Expression (FIRE), sent a letter urging the committee’s chair to “drop its investigation” as any “adverse action taken against Ms. Diei as a result of her social media posts would violate the First Amendment.” But on Sept. 2, the committee went ahead anyway, and unanimously voted to expel Diei from the College of Pharmacy, citing “professionalism policies” in the student handbook. Diei appealed this decision, and the College of Pharmacy’s Dean Marie Chisholm-Burns reversed the expulsion decision on Sept. 25.
But in February 2021, FIRE sued on behalf of Diei. The lawsuit argued that the “professionalism policies” of the College of Pharmacy are unconstitutional, constitute viewpoint-discrimination, allow the committee to “punish a broad range of protected speech” and are overly broad by permitting the college to “regulate the off-campus, personal speech of students for no legitimate pedagogical reason.”
In August 2023, the U.S. District Court for the Western District of Tennessee dismissed the suit, deciding Diei’s social media posts were not protected speech because the “content, form, and context of her social media posts are not matters of public concern which are entitled to First Amendment protection.” But in September 2024, following an appeal, the U.S. Court of Appeals for the Sixth Circuit found that Diei’s social media posts were protected under the First Amendment and that “College administrators were not entitled to qualified immunity, a doctrine that can shield officials from accountability when they violate constitutional rights,” according to FIRE.
Headshot of FIRE attorney Greg Greubel. Photo courtesy of FIRE.
In an interview, Greubel discussed Diei’s case and its First Amendment implications, explained why universities cannot police student’s protected online speech, and argued that “professionalism policies” found in university codes of conduct are often vague or run afoul of protections for free expression.
Editor’s note: This interview has been edited and condensed for length and clarity.
FAW: What First Amendment protections are provided to college students’ social media content?
Greubel: Students have the same rights to engage in online speech as they do in the physical world. That was one of the important parts of the case. But in terms of just speech protection, they can’t be punished for the content of their speech or for the viewpoint that’s expressed in their speech, and that’s precisely what the university did in this case, where they punished Kimberly for her speech, saying that it was “crude,” “sexual” and “vulgar.” So that was obviously one of the biggest First Amendment flag there is, and we were happy to take her case
FAW: Social media users often report immoral, unethical or hateful content to the creators’ schools or universities. Is there a point in which a university or college could police students’ speech online without running afoul of the First Amendment?
Greubel: They have an uphill battle, as they should. In this case, the court started off by saying if the speech has nothing to do with the profession the student’s going into, generally, it’s off the table for the university to be able to punish a student for that. Could there be a situation where a student runs afoul of a well-crafted policy that is clearly given to them, clearly understood by them, something that regulates the profession in which they’re going into? Perhaps, but I think it’s going to be a very difficult time for universities to maintain those kinds of policies, because typically, if you just look a little bit behind the rationale of what they’re doing, it’s viewpoint discrimination or content-based discrimination. And I don’t think that there is a lot of room for universities to go out there and be looking at student’s social media pages, because oftentimes students are making jokes or it’s something that is a part of a larger conversation. It’s very difficult to say, “Oh, you said this on ‘x’ day, and that means that you no longer have the character necessary to enter,” in Kim’s case, “the pharmacy profession.” Perhaps there could be ways in which schools are permitted to regulate student speech if there’s true threats, for example, sure. But more generally, it’s a hard case. They face that uphill battle, like I said, and I think one of the important things of our case was that the court denied the individual defendants qualified immunity, saying that it was clearly established that students have a right to engage in online speech and that their university can’t just say, “Well, we’re going to call this unprofessional and punish you for it.”
FAW: Although this case pertained to a student, would it be any different if a faculty member or administrator posts comments that the school doesn’t like?
Greubel: If it’s a faculty member, it’s a slightly different test in terms of whether or not their speech is protected. You’re going to be looking at the Pickering balancing test, but you start with the proposition that their speech is protected. If this were Kimberly’s professor that was tweeting or posting the exact same thing that Kimberly was posting, those would absolutely be protected, and the university would have no business punishing a faculty member because they were expressing their love for Cardi B or talking about getting ready to go out one evening. I think that’s really what Kim’s posts were, they were well within the normal bounds of internet speech and just really normal social media posts, and not the kind of thing that you would imagine you could get kicked out of school for, or if you’re a faculty member, lose your job over.
FAW: This was at the University of Tennessee, a state school whose actions are subject to First Amendment limitations. Would the outcome of the case be different if the student was enrolled at a private university?
Greubel: It very well could have been, because it’s a private school that wouldn’t be subjected to the same First Amendment standards as a public university. Sometimes those schools have created contractual rights between themselves and their students, where they have agreed to abide by the First Amendment or agreed to permit the students to engage in protected speech in some form. It’s got to be a very explicit incorporation of a promise that they make to their students. But yeah, it would likely be different because of the lack of state action there.
FAW: Does the fact that Diei was operating under a pseudonym matter here? Or would the case conclude the same way if she used her full name?
Greubel: I don’t think it really affects the merit of the case at all. If she were posting under her name, the exact same things that she posted that were sent to her as the post that violated the professionalism policy, we would have brought the same case, and I think we would have gotten the same outcome.
FAW: What has FIRE’s research found regarding these types of policies? Are university policies regarding “crude” or “sexual” posts common?
Greubel: So the thing FIRE sees often are these professionalism policies, and they are typically vague. They’re overly broad. They say that if you are engaging in unprofessional speech, the school may regulate that. The biggest problem is that they’re vague, and it’s really up to the people that enforce them to decide what is and what is not professional. Students could be punished for political viewpoints that may be deemed offensive by some, or students, like Kimberly, could be punished because the group of people they put in charge of this professional committee think that sexuality is something that isn’t a part of your profession as a pharmacist. It’s just really difficult for students to understand how these professionalism policies are going to be applied and take steps to comply with them. It’s really difficult. I don’t think Kimberly could have really imagined that she would get in trouble under a professionalism policy for a tweet about Cardi B. It’s just very difficult to find the connection there. And we do see them a lot across the country, and I feel we don’t often even know the ways in which they’re enforced, because it is such a sort of coercive use of power by the universities to take it upon themselves to monitor what a student does 24/7 under the guise of professionalism. So I hope that Kimberly’s case will inspire other students who have been subject to these professionalism policies, or are going to be subject to them in the future, to reach out to FIRE and let us know about it. We’d love to help more students and get more cases like Kim’s where we can fight for the First Amendment rights of students to engage in robust speech online.
FAW: The settlement includes a “no admission of liability” clause. If it doesn’t need to admit liability, does the university have to change its policy, or its approach to enforcement?
Greubel: They have to enforce their policy consistent with what the Sixth Circuit opinion was. So I think that is a big win. It’s very clear that you can’t just punish the student because you don’t like what they have to say. There has to be a legitimate educational reason for doing so.
FAW: Has a similar issue come up in other federal appellate courts? How did they rule? Is this ruling only applicable in the Sixth Circuit?
Greubel: There have been similar “professionalism” cases in the Sixth, Eighth, Ninth, and Tenth Circuits, most of which come out in favor of the universities aside from the Sixth Circuit’s decision in Ward v. Polite (2012). The Ninth Circuit case I mentioned is Oyama v. Univ. of Hawaii (2015), and the university prevailed in that suit. I will caution that this is not an exhaustive list of cases concerning “professionalism,” but these cases represent how courts have dealt with these issues.