Cybersense—Web Speech Remains Protected, Even When Offensive

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Can teachers punish their students for passing notes outside of class?

If those notes are online, they might well try. Over the past few years, a growing number of students have been disciplined at school for items they’ve sent each other in e-mails or posted on their personal Web sites. Some students have even been threatened with jail time for posting harsh words and threats against teachers, school officials or classmates.

But when those cases end up in court, judges and prosecutors are beginning to acknowledge that a school’s ability to discipline students usually extends no further than the campus fence.

In Pennsylvania, for example, a high school student was suspended for 10 days after his school’s athletic director got a hold of an e-mail message in which the boy was making fun of him. The message included a “Top 10” list that mocked the man’s appearance and speculated about the size of his genitals juvenile-grade content that could provide two-thirds of the plot of a typical summer movie.

If the teacher had snared the note in class, the student might have been ripe for punishment. But this was an e-mail message the boy composed at home and sent to his friends on his own time. That didn’t deter school officials from suspending him for being “rude,” “demeaning” and “abusive.”

But a federal judge ruled earlier this year that such traits are protected by the First Amendment if they manifest themselves on the Web or anywhere else off campus. U.S. District Judge Donald E. Ziegler said that while schools can prohibit lewd, vulgar or profane speech on school grounds, they cannot discipline students for behavior that hasn’t “materially disrupted the school environment.”

That language comes from a 1969 Supreme Court decision regarding students who were disciplined for wearing black armbands to protest the Vietnam War. And while the kids targeted for their online shenanigans aren’t doing anything nearly so noble, their behavior is protected by the same rule.

A similar standard recently convinced New York prosecutors to drop misdemeanor harassment charges that had been filed against two high school students in Chappaqua. The young men had posted a Web site describing female classmates’ alleged sexual exploits and other details about their lives, including their names and telephone numbers. But since their page didn’t directly threaten anyone, it wasn’t a crime.

“While some of the material is offensive and abhorrent, the content did not rise to the level of criminal conduct,” said Westchester County District Attorney Jeanine Pirro in a June 13 statement.

Judges have allowed schools to discipline students for online speech that seeks to endanger teachers or students. A state court panel in Pennsylvania recently upheld the expulsion of a middle school student whose Web page suggested one teacher should die and solicited contributions toward hiring a “hit man.”

The boy’s site included some offensive images, including an animation showing the teacher morphing into Adolph Hitler and another that superimposed his face onto the blood-spurting corpse of the oft-killed Kenny from TV’s “South Park.” But the student’s discipline wouldn’t have withstood the court’s scrutiny if he hadn’t included threats that convinced the teacher to take a leave of absence.

Other recent decisions have upheld students’ right to mouth off online. A federal judge ruled last year that a Seattle school couldn’t punish a student who posted Internet obituaries of classmates. A Washington state court judge followed suit a few months later, overturning the expulsion of a student who had poked fun at an assistant principal online. Meanwhile, an Arkansas school recently backed off its suspension of a teen who posted a sexually explicit parody of his school’s official Web page when the American Civil Liberties Union stepped in.

Teachers and administrators must think it’s unfair that their online humiliation doesn’t even merit a note in someone’s permanent record. But if their students’ criticism doesn’t include outright threats, it seems the most they can do is turn off the computer and start drawing up a pop quiz.

To contact syndicated columnist Joe Salkowski, you can e-mail him at [email protected] or write to him c/o Tribune Media Services, Inc., 435 N. Michigan Ave., Suite 1400, Chicago, IL 60611.

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