Let me say at the outset that when a 14-year-old eighth-grader posts a fake profile on MySpace.com about her school principal, as one did in Orwigsburg, Pa., which includes vulgar references to his anatomy and insinuations of sex with children, she deserves to be grounded for life by her parents. And those texting privileges? Gone.
But the online student speech cases that have been percolating through the courts aren't about parental discipline for disrespectful, potty-mouthed teens. They involve the public schools' response to what students are posting on their own computers off school property. The question then becomes how far off-campus does the authority of the schools stretch?
Not that far, I'd say. Otherwise you give school officials the expansive power to censor their students anytime, anyplace and on any controversial subject. And don't think they won't use it whenever a nose gets out of joint.
Take the case of 18-year-old Alex Fuentes, who recently got into trouble as an honor student at Wesley Chapel High School in Pasco County for hosting a Facebook page called "Wesley Chapel High = Fail." This prompted a faculty committee to kick Alex out of the National Honor Society for disloyalty. (Alex has since transferred out of that school.)
And in 2007 Katherine Evans, then a senior at a high school in Pembroke Pines, was given a three-day suspension for creating a group on Facebook entitled "Ms. Sarah Phelps is the worst teacher I've ever met." On Feb. 12, a federal magistrate in Miami ruled that Katherine's lawsuit can proceed as her First Amendment rights were likely violated.
Kids outside of school should be allowed to express dissatisfaction with their teachers and school without endangering their academic record. But so far the courts are all over the map. It's a real muddle. Judges seem to respond viscerally to the cases before them, determining the reach of free speech protection based on how offended they are by the speech.
For example, in the case of the girl from Orwigsburg who created that disgusting and lewd MySpace page on her principal, a federal appellate court earlier this month upheld her 10-day suspension. In reaching for a justification, the court said that the profile could have created a substantial disruption in school, even though it hadn't done so.
But on the same day, the same 3rd U.S. Circuit Court of Appeals with a different panel of judges ruled that then-high school senior Justin Layshock, who also created a demeaning parody profile of his principal on MySpace, was constitutionally protected. Justin's insultingly silly profile made fun of his principal's large size, except for one particular body part.
The school's reaction was to impose a 10-day suspension and order Justin, a gifted student in advanced placement classes, to the district's alternative program for students with behavior problems.
In finding Justin's First Amendment rights violated, the court said it would be "an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child's home and control his/her actions" to the extent it can exert control in school.
Those warnings are valid not only because of the free speech implications, but because punishing online student speech intrudes into the province of parents, usurping their authority to direct their child's upbringing.
The uncomfortable truth is that there is no way to outlaw offensive speech while still protecting valuable discourse. When people are passionate about a position they will often use language that is strong and distasteful. Beyond applying libel laws and laws against threats of violence, government authorities shouldn't be drawing the lines, permitting some ways of communicating while punishing others.
It makes pedagogic sense for the First Amendment to allow school officials some say over the tenor of speech in school. But by unleashing that power to anywhere a student is, school authorities would essentially get to control the speech of the general population under 18. That's too much discretion for schools and not enough freedom for young people.