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Originally Posted by Ooh La La
Off the top of my head for related cases, I'll cite Tinker v. Des Moines.
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Tinker dealt with whether the school could censor political speech that happened to occur on school premises. While it lays out general principles of First Amendment application in the public school setting, it dealt with a very different set of issues from those presented by this situation. These general principles, however, include, as you noted, the principle that a school
can prohibit or punish certain speech if it can show "that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," and that the speech in question "'materially and substantially interfere[d] with the requirements of appropriate discipline in the operation of the school.'" (Quoting
Burnside v. Byars)
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Futhermore, facebook is a place for "human expression." It isn't the same as being in school, so it has a higher degree of first amendment protection than if it had actually been said in school.
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I'm not sure I see your point. The First Amendment is inapplicable unless the government is trying to censor speech or punish on the basis of speech.
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For instance, in Hazelwood v. Kuhlmeier, the court ruled in favor of the school only because the newspaper was school funded. If students had put it together out of school, on their own time, it would have had a very different ruling.
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Actually, the issue in
Hazelwood was whether the school had established a forum for free expression or not and thus whether the school could reasonably control the contents of the paper and was required to affirmatively sponsor speech that conflicted with school policy and goals. (The Court said no public forum had been created and the school could reasonably control the contents.) There's nothing in the opinion that I see that draws the "if this had been a private newspaper" distinction.
Pertinent to this discussion, the Court in
Hazelwood said:
Students in the public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." They cannot be punished merely for expressing their personal views on the school premises -- whether "in the cafeteria, or on the playing field, or on the campus during the authorized hours," -- unless school authorities have reason to believe that such expression will "substantially interfere with the work of the school or impinge upon the rights of other students."
We have nonetheless recognized that the First Amendment rights of students in the public schools "are not automatically coextensive with the rights of adults in other settings," and must be "applied in light of the special characteristics of the school environment." A school need not tolerate student speech that is inconsistent with its "basic educational mission," even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was "sexually explicit" but not legally obscene at an official school assembly, because the school was entitled to "disassociate itself" from the speech in a manner that would demonstrate to others that such vulgarity is "wholly inconsistent with the 'fundamental values' of public school education." It is in this context that respondents' First Amendment claims must be considered.
To be clear, I am not saying that the school has in fact met this required showing. I am simply refusing to dismiss, based only on the articles we have seen (which
never tell the whole story), the possibility that it can meet that showing. And I am refusing to dismiss all possibility that something posted on the web while not at school can be cause for disciplinary action to the same extent it would be if done on school property or during school hours.
It seems to me that analysis of this situation takes two steps: First, if the student had said in class or on school property what he said on facebook, could he be disciplined? If he could, then does it matter that he said what he did in a form of online publication that was (potentially) published at school and could have the same effect at school as if he had said it there. I think that in all likelihood, the answer to the first question is "yes," and I think it is possible that the answer to the second question could be "no, it does not matter."
I find nothing in
Tinker or
Hazelwood to suggest otherwise. Ditto
Papish (in which the Court
per curiam reversed the decision allowing the university to take disciplinary action for "violations of conventions of decency") or
Frederick.
Temporarily wishing I had pursued my Harvard Law degree.
Hybrid Mode
