Intellectual Property Law

Rulings Leave Online Student Speech Rights Unresolved

By David Kravets

Do American students have First Amendment rights beyond the schoolyard gates?

The answer is yes and no, according to two conflicting federal appellate decisions Thursday testing student speech in the online world.

“Ultimately, the Supreme Court is going to have to decide if there ever is a time students have full-fledged First Amendment rights,” said Frank LoMonte, executive director of Virginia-Based Student Press Law Center. He’s one of the attorneys in the cases the 3rd U.S. Circuit Court of Appeals decided.

The U.S. Supreme Court has never squarely addressed the parameters of off-campus, online student speech, but might soon. So far, lower courts appear to be guided by a 1969 high court ruling saying student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.”

In that landmark case, the Supreme Court said students had a First Amendment right to wear black armbands to protest the Vietnam War. But that precedent, which addressed on-campus speech, is now being applied to students’ online speech four decades later.

One of the cases favoring student speech decided Thursday concerns a senior and honors student. In 2005, the Pennsylvania high school student was suspended 10 days after he created a mock MySpace profile of his principal.

The profile said the principal took drugs and kept beer at his desk. A federal judge overturned the suspension, ruling last year the fake profile was not created at school and did not create a “substantial disruption” at school.

“Public schools are vital institutions, but their reach is not unlimited,” U.S. District Judge Terrence McVerry of Pennsylvania ruled. On appeal, the 3rd Circuit agreed, saying Thursday “the reach of school authorities is not without limits.” (.pdf)

The other case decided Thursday, by a different three-judge panel from the same circuit, went against a 14-year-old Pennsylvania junior high student. She mocked her principal with a fake MySpace profile. The 2007 profile insinuated the principal was a sex addict and pedophile.

She was suspended for 10 days. Her parents sued, citing the child’s First Amendment rights.

On appeal, the the 3rd Circuit noted that teachers complained that, among other things, the profile disrupted the classroom because students were talking about the profile rather than paying attention to class.

“We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student,” (.pdf) the three-judge circuit panel wrote.

Dozens of similar cases scatter the federal courts. LoMonte, of the Student Press Law Center, said the only other appellate decision on the matter concerns a Connecticut high school junior punished for calling school officials “douchebags” in her blog.

The 2nd U.S. Circuit Court of Appeals last year upheld her punishment of being forbidden to run for a class office. The court reheard the case last month. A decision is pending.

Photo: euthman

See Also:

• Student Who Created Facebook Group Critical of Teacher Sues High …
• School Dazed by Speech Ruling
• Scenes From the MySpace Backlash
• Creationism Dig Violated Student’s Rights
• Pro-Gay Sites Filtered From Tennessee Students
• Student Sentenced to 15 Years for YouTube Terror Video

Full post as published by Threat Level on February 04, 2010 (boomark / email).