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Digital technology changes boundaries of students’ free speech rights

Posted: June 26, 2011 - 8:09pm

How far student speech has come since Mary Beth and John Tinker and Christopher Eckhardt wore black armbands to school in Des Moines to protest the Vietnam War and got suspended as though they were common hooligans.

Now, online-savvy teens get in trouble for rudely mocking their elders on social networking sites, and the ensuing court battles rattle and redefine free-speech boundaries.

In Tinker v. Des Moines Independent Community School District, Justice Abe Fortas famously wrote for the Supreme Court in 1969 that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But in an Internet-driven world, where’s the schoolhouse gate anyway?

Appeals court rulings from Pennsylvania recently held that students were wrongly disciplined at school for online nonsense they created on private computers. But that’s only the first question on a confounding test.

In one case, Justin Layshock got suspended for 10 days, sent to alternative education and banned from graduation for a fake MySpace profile he created on his grandmother’s computer in December 2005. (That was before Facebook took over the world, you know.)

Layshock, then 17, cut and pasted his high school principal’s photo from the school district website and set up the page as though it belonged to him: a drunken, pot-smoking “steroid freak” and worse.

Three other students produced nastier MySpace profiles of the principal, according to the June 13 ruling in Layshock’s case from the 3rd U.S. Circuit Court of Appeals. But only Layshock apologized — or got punished. That’s some heavy lesson in irony.

The judges said Layshock’s First Amendment rights were violated, given that his foolishness (my word, not theirs) was done off-campus and didn’t disrupt school.

The court ruled similarly in the case of a student identified as J.S. She was in eighth grade in 2007, got cited for dress code violations then used her parents’ home computer on a Sunday night to create a lewd MySpace profile with her principal’s photo but a phony name.

She portrayed him as a sex-addicted pedophile with a child who resembled a gorilla and a wife who looked like a man. J.S. apologized but got a 10-day suspension.

For guidance, the appellate judges looked to other cases about student speech.

In Tinker, the Supreme Court said administrators couldn’t punish classroom political expression that wasn’t disruptive.

But in 1986, the justices said a student could be disciplined for an assembly speech full of sexual innuendo.

In 2007, the court upheld the suspension of a student who displayed a “BONG HiTS 4 JESUS” banner at an Olympic torch relay — he was off school property, but it was a school-sponsored event.

The 3rd Circuit said it would set “an unseemly and dangerous precedent” to allow the state to “reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school-sponsored activities.”

And that sounds right.

But what about “children” who blog threats toward teachers or bully fellow students through Facebook?

Presumably, menacing isn’t free expression, but where’s the line and who draws it?

If we separate on-campus from off, what’s an administrator to do when a student in an online course uses her grandmother’s computer to cheat on an exam or create a plagiarized report full of copyrighted material?

What if Ferris Bueller’s evil twin doesn’t just take a day off by feigning flu but sits at an Internet cafe hacking the school’s computer system into havoc — and claims it’s a political statement about deficient online security?

“We cannot sidestep the central tension between good order and expressive rights by leaning on property lines,” 3rd Circuit Judge Kent Jordan wrote in a concurrence.

Quoting Justice Oliver Wendell Holmes’ classic 1919 line that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” Jordan said the same rule would apply if the man were standing outside, shouting in — or if a student caused pandemonium at school from beyond campus.

If the state can reach into kids’ homes just because school officials believe they’re up to no good, then there are no boundaries. But what are the limits on malicious or disruptive speech?

The lessons of technology aren’t easy, after all.

• Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram.

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