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.
Comments (26)
Add commentDefining internet space
It seems to me that the location from which the internet was accessed is immaterial. Whether or not you agree with the decision made on Joseph Frederick, where he created his infamous sign was never an issue; the controversy occurred when he displayed in a public setting easily visible from school grounds.
Reprimanding a student for internet bullying isn't reaching into a kids home any more than punishing a student for distributing offensive flyers inside of the school. Not all things posted on the internet are public, but for those that are and that disrupt school matters, educators need to be able to ensure the well-being of their students and the integrity of the school's administration.
But should schools be allowed
But should schools be allowed to punish a student for activities outside of school hours and school grounds? A school can't punish you for yelling at your mom, and it shouldn't be allowed to punish you for posting stupid stuff on Facebook or Myspace (unless it's during school).
You know what get me? They
You know what get me? They complain about this freedom of speech stuff ect.... yet they let teenagers dress in drag because they feel they are transgender? Bullcrap. Obviously they have lost touch. If its a boy, its a boy. Likewise if its a girl. They are afraid of lawsuits based on freedom of self expression, but they arent afraid to step on other parents moral values at a base level stating that these idiots state that they feel like a girl when they are obviously a man. This is happening at JDHS folks, there is boy wearing mini skirts and full drag that girls arent even allowed to ware in our high schools. If things keep going the way they are, in the sake of Self expression... our kids are going to be ethically ungrounded because they are teaching kids that its ok to behave this way.... Thats what bugs me
AKJAMIN
Yeah, because dressing as a girl (or the way a girl dresses as dictated by our culture) is SO unethical.
I don't think you can craft an argument explaining why it is WRONG for a boy to dress in a skirt.
I also don't think you understand the concept of gender, which is not necessarily based on your sex. I can't imagine the hell men who believe they should be women or women who believe they should be men experience every day.
Wow, AKJAMIN, A:That has
Wow, AKJAMIN, A:That has nothing to do with the above article and B: That is so blatantly ignorant that it hurts my mind.
Anyway, PP, I do see a lot of room for debate on this issue. However, yelling at your mom is not analogous to internet postings, as the prior event is contained entirely within the home, whereas the latter, thought it may originate in the home, reaches outside of it.
I'm honestly not sold one way or another on how schools should handle internet speech, but I don't think it matters where the student accessed the internet; it's no more or less visible to other people no matter where it originates.
That is true. Kids can do
That is true. Kids can do stuff outside of school that still affects them and others inside of it--but I think in order for the school to be allowed to punish students for internet-related things, it does need to relate to school somehow. Otherwise, administrators with too much time on their hands can easily just go looking for things to punish kids for.
Wake up
The point is friend, I have three kids, and no the school doesnt have a right to sensor out of school behavior. If he doesnt like the slander, sue them personally. If it hurts your head, thats not my fault, some people just dont like to deal with the issues at hand, which is where we are where we are in the public school system.
Amazingly, I agree with Persnickity
But also agree that you can't stand across the street from a school and yell "fire"!
The best solution is probably for each state or community to draft their own laws on internet harassment so that when a student initiates online chaos like the examples given in the article, school officials have legal grounds to alert the police and have the student punished through the legal system - not the school discipline system.
Right, right, PP. This is
Right, right, PP. This is where I find myself ethically torn; cyber-bullying, for instance, is an increasingly significant problem, and I do believe that schools should have some recourse in such an event. The event concerning the fake profiles, however, sounds much more like slander/libel, which really ought to be settled outside of school.
My principle concern with handing internet authority to schools is that schools have consistently shown themselves to be overly reactive concerning speech censoring. It would be outrageous to give the school grounds to punish students for every online profanity they've uttered, but it would be hard to give them specifically limited authority either. This is where I find myself at an impasse.
It is worth noting, as
It is worth noting, as averagejoe noted above, that the school's disciplinary options are separate from legal punishments. Just as an employer can fire you for exercising your first amendment right to curse loudly, so too can a school discipline a student for technically legal behavior.
AKJAMIN
"If it hurts your head, thats not my fault, some people just dont like to deal with the issues at hand, which is where we are where we are in the public school system."
I have dealt with the issue at hand. Gender is a social construct, and we live in a society that permits people to live in ways once believed unacceptable. If a boy choosing to live his/her life as a girl upsets you, I think the problem lies with you. Or do you think that the government should dictate how people live?
So, if one of your neighbors teenagers
created a bogus facebook page, with your photo, that indicated that you were a drunken pedophile, etc., sent friend requests to people that you know, like your employer, some of you would laughingly pass it off as freedom of speech?
Riiight.
It is called libel, and it is a crime.
Throw it all in the fire
You people are thinking without scope, this lack of moral construct is exactly why this school system is the worst. You know what we should do, let everybody do what ever they want, whenever they want, because this is what we are heading towards right? Because you cant tell ME what to do, "Im smart...." or I have the right to be morally un-subjected to the countries constitution and laws that made us ONCE great. Thats ok, lets just keep tearing down the foundation's that made us the most respected nation in the world Who cares right, Im not accountable for my actions...
I think im gonna be sick.
AKJAMIN
Please show me the article in the constitution that mandates certain roles for men and women.
And then please tell me, specifically, how the breakdown of gender roles negatively impacts individuals and society at large.
If you can't do this, then this really just boils down to other people doing things you don't like, even though it doesn't really affect you.
AKJAMIN
I think a great measure of an acts morality is how it affects other people. Perhaps I believe that people shouldn't be fat, that everyone should take care of their bodies, and that beer bellies should be outlawed. But someone being fat does not restrict my freedoms - I'm not hindered by the obesity of those around me, so I have no moral grounds to object from. Likewise, someone living in a gender opposite their sex does not limit what I can do with my life, so I have no moral grounds to object there either. If someone shoots me, I've been caused great pain and anguish and possibly death. My freedoms have been severely impacted, hence shooting someone is an immoral act.
You think that I believe myself free from morals? On the contrary, I have to work hard to maintain my morals. It would be far easier to point to a big book and say, "because the bible says so," but I find 2,500 year old dogma insufficient reason to hate other people.
AKJAMIN
In the real world - where you probably have never been - people dress however they want. Men dress like women, women dress like men, and guess what? The world has not come to an end!
Your claim that " If things keep going the way they are, in the sake of Self expression... our kids are going to be ethically ungrounded" is totally off base. Ethics come from within and what is taught by parents and has nothing to do with sex, gender, or sexual orientation - which are all separate things by the way!
Average joe
US Veteran, Home owner, father of three. Been where you havent, seen the world in decrepit, 3rd world states. Well grounded in what it takes to make a strong ethical family work. People like you are afraid of what you don't understand, and are fecal in their learning habits. I want you to go to war, have your friends die next to you and tell then tell me how and what your country should teach... I know what its like, its turning to crap in a hurry. Because people don't see outside the American box. Im was willing to die for my beliefs, and still am. That is my resolve. Its easy for people to change and pick apart what they dont understand took to make happen. I made that sacrifice, and I will fight tooth in nail with anyone who wants to destroy the country true Americans fight for, not just where given and love to criticize, scrutinize and bash our amazing constitution. Smarter people then you and I wrote it, and I put my faith in them and the courage they laid down to insure this freedom.
Do you see what happens when you find a stranger in the alps?
@AKJAMIN: ever see "The Big Lebowski"? Your post is a lot like one of Walter's rants.
And guess what? Clothing choice has about as much to do with ethics as bowling does with 'Nam.
Amazing
Go ahead, where a skirt, and the rest of us will see you for the fool you are
My God, AKJAMIN, are you
My God, AKJAMIN, are you bitter. You've never actually stated what it is about transgendered people that bothers you, nor what it is that they're doing that is destroying Uhmerca. The beauty of our constitution is that it is a living document - it can change as society changes. If you view this as a bad thing, than I plainly invite you to never drink a beer again in honor of the 18th amendment.
People don't see outside the American box? I think you may be the only one looking at the US as a box. The rest of us see it as dynamic and open. Gay marriage is now legal in New York; I welcome this social change and look forward to the good that will undoubtedly spring from it.
As far as your service, your homeowner status, and your parenthood, no one is questioning your credentials, and frankly, they are irrelevant to this discussion. Your war service is honorable, perhaps, but it does not make you a legal nor moral expert.
I frankly dont care what you think
Your liberal view points are what is threatening American ideals. I hate to break it ya but what has been done can and will be overturned. Its only because if this presidency that has warped delusional views of personal freedoms has come to pass. I for one I didn't vote for it, or him or his Socialist agenda. We will take it back, and once again put the boots to immoral people, and I stand by that. As for if Im bitter? you obviously don't love the values that I do, an our visions for a degenerate free America are not the same. Its not as though Im alone and a voice in the distance. You know what this equates to? Kids pushing a dads buttons to see what they can get away with, I do support government, because if it where possible for people to govern themselves completely, we would live in a Utopia. But our prisons reflect the inability to accomplish that. That's why we have laws to keep sexually confused individuals behind bars when they decide to start touching little boys and girls. I don' want them in my schools, and in my neighborhoods.
God forbid we become as
God forbid we become as socialist as Denmark. Did you know that Danes pay 50% in taxes? Did you know that Denmark is consistently rated the happiest country in the world? That sounds miserable. I'd hate to be them.
I'd like to debate the issue, but you've already closed your mind. You don't care what I think, but I do care what you think, because I don't like the thought of people holding erroneous beliefs.
"That's why we have laws to keep sexually confused individuals behind bars when they decide to start touching little boys and girls. I don' want them in my schools, and in my neighborhoods."
Do you realize that homosexuals represent less than 5% of all child molesters? Here's some very basic reading: http://psychology.ucdavis.edu/rainbow/html/facts_molestation.html. About halfway down he outlines 9 studies that show no correlation between sexuality and child molestation.
In short, you have no evidence that liberal ideas are destroying this country because they are doing no such thing. Your beliefs are without merit, merely wild speculation based on flawed anecdotal evidence. You would engender hate towards a people that are already persecuted. Two thousand years ago, you would have been in a crowd crying out for crucifixion. The world has outgrown your closed mindset, and people enjoy more freedoms save for one we should never have - freedom from responsibility. Good day, sir.
The bottom line is taking responsibility for ones actions.
If a student chooses to create a fake profile of their principle or teacher then the principle or teacher has the right to sue the student for libel. Every person has the right to say whatever they want. They will have to suffer the consequences if they do. I for one would like to know what the parents are doing during all of this. Believe me if one of my daughters were to do something like this to someone of authority, they would suffer the consequences for sure. Something like a VERY public apology comes to mind.
As for the other junk discussed here. No comment.
EVERY person has the right to their opinion, no matter how wrong they are. :)
People like AKJAMIN give America a bad name!
It's uneducated rednecks like you who unfortunately populate much of the U.S. that keep this great country from moving forward. News flash: your morals and values are yours - not mine. Freedom means I can do what I want as long as it doesn't hurt you - duh.
Soooooo ironic that you fought for this country but don't recognize the greatest gift freedom affords its beneficiaries - the right to dress how they want, marry whom they want to marry, and raise kids however they feel is right.
It is scary how sexist pigs like you want to bring your morals on to me but still yell about freedom! Please do the this country a favor and cull your children and off yourself - and as many of your friends as possible....it would be your greatest gift to America!
It was junk wasnt it, sorry
Its great to fish out peoples true opinions with what they want to hear sometimes. I'm sorry it was a amusing to see people squirm in their computer chairs. Intellectual baiting isn't what we are here for. I just dont care for public school systems at times. I was home schooled, so I was always kind of an annalist of sorts watching the system work. Freedom of speech is a great thing...
Public school offers "Spelling" AKJAMI.
Something your home school apparently didn't offer. More importantly it gives students an opportunity to learn and grow in other ways - ways that our Constitution protects from narrow minded teachers, administrators and parents. Too bad we have so much work ahead of us on these subjects.