Friday, April 6, 2012

Schools, Free Speech, and Social Media

How much control should a school be able to exert over a student with regard to the student’s conduct outside of school? With the continued increase in the use of social media, whether in the form of Facebook, Twitter, or any of a host of other new media sources, this question is being asked more and more often. And so far, I think that schools are often overstepping their bounds and depriving students of their protected free speech rights.

A story in The Indianapolis Star earlier this week (not available online, apparently) offers a prime example of the way the issue plays out. Apparently a student at an Indiana high school tweeted a profanity in the middle of the night. The school, contending that the student had used either the laptop provided by the school or the school’s computer network, expelled the student.

Now, my point here is not to defend the student for using Twitter to fire off an expletive; nor is it my goal to discuss whether expulsion was the appropriate punishment. Rather, I want to discuss whether the school has any business policing this or similar conduct.

So let’s start by throwing away the idea of new social media and, instead, focusing on more traditional forms of communication. Thus, for example, in thinking about the student mentioned above, let’s presume that he wasn’t using Twitter or a laptop or any technology at all. But, rather, while sitting in study hall or at lunch he took out a piece of paper and wrote a note to some friends and that note included an expletive. Does that change your feelings at all? What if the note was written, not in school, but at the kitchen table in his house?

One thing to keep in mind is that courts have held over the years that students don’t lose their First Amendment rights simply by walking through the doors to the school. On the other hand, schools are allowed to discipline a student or restrict speech to the extent that it has an impact on the educational process at the school or is disruptive. Thus, for example, in the most well-known case on the subject, Tinker v. Des Moines Independent Community School District, the United States Supreme Court analyzed a school’s effort to stop students from wearing black armbands to school to protest the Vietnam war and, ultimately, ruled that wearing the armbands was protected free speech that did not disrupt the educational process.

Now, while I’ll grant that a note (or tweet) with an expletive is a far cry from an anti-war message, the broader question of how that speech disrupts the school’s educational process remains the key question. I would argue that the note (or tweet) has absolutely no impact on the school or the educational process and thus should not be subject to control by the school. My belief on that subject is furthered when the speech in question is done outside of the confines of the school. And frankly, I’m having a hard time getting worked up over the issue of whether the computer that the student used was his personal computer or one provided by the school; would the note written by the student be subject to less protection if the paper or pencil had been provided by the school?

Well, you might ask, what if the message was actually about the school or a teacher? Should that matter? In response to that query, I’d ask the following question in return: If a kid stands on a street corner and yells, “Mr. _____ is a jerk who gives too much homework” or “Mrs. _____ is a bitch because her grading is unfair” would the school have the right to discipline the student? I don’t think that there is an exception to the right to freedom of speech that restricts that speech if it is insulting to a teacher; that would be a content-based prior restraint that would, I think, run afoul of the First Amendment. And frankly I doubt that many schools would argue that they could discipline a kid for that kind of speech anyway. So why does identical speech on social media seemingly fall within the purview of a school’s right to punish?

But schools appear to be going even further in the zeal to enforce some kind of discipline on students. Witness, for example, the two girls from northern Indiana who, during their summer vacation, posted racy pictures of themselves on Facebook. Their high school kicked them off the volleyball team. Now query what business it is of the school to monitor and punish what students do when not in school, let alone on summer break? And query further just why the school was monitoring the girls’ Facebook pages in the first place? And ask yourself whether the school would have taken the same action had the photo not been on Facebook, but say, in a swimsuit calendar or if the girl had a role in a movie that required her to dress racy (think Brooke Shields in Pretty Baby … or was it Blue Lagoon? … all those years ago)?

If a student is convicted of a crime, then the school might have a right to impose discipline (but query whether that would be a form of double jeopardy prohibited by the Constitution). And if a student “abuses” his or her right to free speech within the school environment in a way that disrupts the educational process, then the school certainly has a right to discipline (for example, a student who won’t let a teacher teach because he keeps yelling or calling the teacher names or a student who uses his free speech rights to bully another student). But when that conduct is not disruptive (black armbands) then the school ought not to be attempting to discipline the student (and query, then, whether the I Heart Boobies wrist bands are disruptive or more in line with the anti-war black armbands). I’m somewhat torn on the issue of whether a school can discipline a student for exercising free speech rights to advocate illegal conduct at a school related event (the students that held up a “bong hits for Jesus sign” at a school-related activity). But when the speech is not disruptive to the school and educational process, the school ought not be imposing discipline.

And when that speech is outside of the school confines, then the nature of the disruption should, I think, be much, much higher in order for the school to properly become involved. Thus, it would probably be OK if a school were to discipline a student for creating a fake Facebook page that appeared to be that of a teacher or if a student were to invade the privacy of a teacher or give instructions on how to hack into the school’s computer system. And, it might also be acceptable for a school to impose discipline if the speech was the in the nature of bullying another student as, I think, an argument could be made that such would, indeed, disrupt the educational process of the school.

But if a student is simply exercising his or her First Amendment rights to engage in speech with others, especially when doing so outside of the school confines, then the school should not be involved and discipline should not issue. Social media may be new and different but we shouldn’t just presume that because it is new and different that it is subject to a greater degree of control and abridgement of the freedom of speech inherent to students.

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