Federal Court’s “Douchebag” Ruling

by on January 30, 2009 · 7 comments

Julian Sanchez at ArsTechnica delivers some unsettling news about the state of free speech in America’s education system:

A federal court has rejected a former student’s First Amendment suit against school officials who punished her for calling them “douchebags” in a LiveJournal post. Right now, the scope of student rights to online speech is anything but clear.

This case centers around Avery Doninger, a grad of Lewis S. Mills High School, who called school administrators “douchebags” on her LiveJournal blog.  Why?  Because of the “possible cancellation of a repeatedly-postponed student concert,” according to Sanchez.  Avery, a student council member, was barred from running for reelection because she dropped this D-bomb.

The Supreme Court has wrangled with the issues of campus speech codes in the past and has drawn some unclear lines—at least to this untrained, non-lawyerly mind—about where free speech begins and ends for students.  Sanchez speak to this point as well, explaining the federal court’s difficulty with this decision:

Citing the blurry line between “on-campus” and “off-campus” speech in the Internet era, the court acknowledged that current law gives no clear answers to the question of where students’ rights to free online speech end and the authority of schools to enforce discipline begins.

It seems to me that the line should be clear.  If you’re at school, you follow the rules.  If you’re at a school event, like a football game or a debate tournament (that would have been me in school) then you follow the rules.  But, if you’re on your blog at home, you get to say whatever the hell you want.

Sanchez notes that the court acknowledged past precedence that deals with just this sort of line drawing, citing a reference the court made to Thomas v. Board of Education, Granville Central School District:

[W]e are not living in the same world that existed in 1979. The students in Thomas were writing articles for an obscene publication on a typewriter and handing out copies after school. Today, students are connected to each other through email, instant messaging, blogs, social networking sites, and text messages. An email can be sent to dozens or hundreds of other students by hitting “send.” A blog entry posted on a site such as livejournal.com can be instantaneously viewed by students, teachers, and administrators alike. Off-campus speech can become on-campus speech with the click of a mouse.

Julian notes that this decision didn’t technically redraw the boundaries for free speech, noting that the court “simply noted that officials could not reasonably be held liable for their decisions given the confused state of the law, whether or not future courts might hold such decisions to conflict with the First Amendment.”

Hopefully this means that no real damage has been done to the First Amendment, but even if the court hasn’t redrawn any legal boundaries, the argument made to support their idea of lines being blurred seems quite weak.

Yes, there are differences between typewriters and distributing paper copies of a newsletters and being able to distribute things digitally, but both papers and blog posts can find their way into schools—I hear some public schools have computers now—so it would seem that the 1979 ruling in Thomas would still hold.

Just as Avery should be able to stand in the public square and call her school administrators “douchebags,” or distribute “Stop the Douchebags” pamphlets, she should be able to write “douchebag” on her own blog without suffering any sort of consequence at her public school.

If this were a private school that had a code of conduct, that would be different in my mind—that’s a voluntary relationship with a school of your choosing (or at least the parents’ choosing).  However, because we have compulsory education in this country, public schools need to respect the rights of the people that are forced to attend them, especially when they’re not actually in school.

However fuzzy technology makes the boundaries between types of speech, what happened to Avery wasn’t right.  The law needs to be clarified—either through the courts or legislation–so that young people can speak their minds without jeopardizing their academic lives.

  • MikeRT

    IMO, even in the case of a private school, it should have to be clearly specified where and when the school assumes authority. I don't think a simple “code of conduct” should be sufficient for them to invalidate the contract between the parents and the school unless the parents agreed to expand the code of conduct to the conduct of the students off campus.

    Parents enjoy a natural authority and exclusive jurisdiction over their children whenever they aren't harming their kids, and a school should not be able to intrude on that in any fashion outside of class except with the explicit blessing (in writing) of the parents.

  • Rubicon

    In the final analysis, the students free speech must trump the school's code, unless her speech incited riot or endangered the public. Her “blog” is not on school grounds, its on the “world wide web,” which includes the entire planet, from an electronic perspective.
    The word “douchebag,” while crude, is NOT vulgar according to the definition of vulgar, nor does it incite to violence or provoke dangerous response or action. Even the over the top reactions of the school officials does not meet the incite or provoke level.
    For whatever reason, there seems to be an intensive effort going on today to force this nation to develop or implement restrictions on speech, as has never before been seen. The reason our founders included free speech in the Constitution & Bill of Rights, is because they saw the danger in allowing politicians or the connected, to determine what speech is acceptable & what speech is not acceptable. Obviously, there is a reason some want speech restricted. Those reasons are exactly why we must demand there be few restrictions. And if we allow our speech to be restricted, edited, balanced, or otherwise impeded, all we do is invite those with power &/or wealth to create a society that conforms to “their” ideals & perspective, while ignoring or trampling those of others.
    Like the “Fairness Doctrine' (which it is definitely NOT), or political campaign limitations (McCain-Feingold), etc., when we allow “some” to decide for all, we have given our freedom to those who we may NOT actually be able to trust or who truly do not understand the awesome responsibility of such decisions.
    The school made this out to be a bigger issue than it is or needed to be. They could have called her in & simply sat her down to tell her that such verbiage is offensive or hurtful to some & she should think about what she says, whether verbally or in writing. There was no need to over-react & use the school's legal systems or rules, to prosecute this person. They used that system because they wanted to lash out & punish her! And THAT is why this should have been dealt with by the courts. The courts needed to establish the very real fact that using the school's legal system or speech codes or other regulations, was totally inappropriate. It was an over-extension of the school's authority & an over-reaction by some who are easily offended!
    I hope this ends up in the courts where we can also hope a legal scholar gets hold of this & responds by chastising the school for its over-extension of authority & its thin skinned administrators, faculty, PTA members, &/or board members.
    This could have been used by the school & “real” teachers, as an example of poor judgment on the part of the kid, poor judgment on the part of the school's management, & why all should learn proper English so they can better express themselves w/o offending others, yet still get their point across!
    (Yes, I know, I know! My English composition, grammar, punctuation, etc. is probably not all that terrific either. But, its not all that bad & I have given no logical reason to have offended anyone in the process!)

  • GEAH

    Now Obama wants to make the idiot who made this ruling a Supreme Court Justice!!!

  • GEAH

    Now Obama wants to make the idiot who made this ruling a Supreme Court Justice!!!

  • GEAH

    Now Obama wants to make the idiot who made this ruling a Supreme Court Justice!!!

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