Legal News

On Students, MySpace and the First Amendment

By Dan Slater

A school in Tennessee can prohibit students from wearing clothing that depicts the confederate flag. A high school in San Diego cannot force a teacher to take down religiously-themed banners in the classroom.

Today, we bring you another ’school & free speech’ case from Pennsylvania, where a federal judge has upheld the constitutionality of a school’s decision to discipline — with a 10-day suspension — an eighth-grader after she created a fake page on MySpace.com that depicted her principal as a pedophile and a sex addict. Here are reports from the Legal Intelligencer and the Republican & Herald.

The ACLU’s Mary Catherine Roper Drinker Biddle’s Mary E. Kohart and Meredith W. Nissen argued that the suspension was unconstitutional because the speech took place outside of school and because it violated the parental rights of the student’s parents to determine how best to raise, nurture, discipline and educate their child.

Here’s what happened, according to court papers: J.S. and another student, identified as K.L., posted a profile on MySpace in March 2007 that showed a photo of principal James S. McGonigle they had taken from the district’s Web site. The profile didn’t use the principal’s name, but identified the person pictured as a “principal,” and described him as a 40-year-old married, bisexual man whose interests included “being a tight ***,” “******* in my office” and “hitting on students and their parents,” according to U.S. District Judge James M. Munley’s opinion.

Interestingly, Munley’s opinion distinguished the Supreme Court’s decision in Tinker v. Des Moines — the landmark First Amendment case that struck down a school ban on armbands to protest the Vietnam War and held that student speech may not be punished unless it caused a “substantial and material disruption at the school.”

Tossing Tinker aside, Munley focused on other cases, including Bethel School District v. Fraser, in which the Court upheld a suspension imposed on a student who used “an elaborate, graphic, and explicit sexual metaphor” during a speech at a school assembly. In Fraser, Munley said, the justices held that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse,” and that limits on sexually explicit, indecent or lewd speech can be appropriate where the audience includes children.

Full post as published by Law Blog - WSJ.com on September 16, 2008 (boomark / email).