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.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.