When we were all growing up, at least those of our generation, we had complaints about our teachers, our principals and our schools. Sometimes we would tell them to our friends when speaking in a group, sometimes over the phone, but rarely by way of letter. The world as it exists today, is a much different world. Our children’s generation which would much rather text than talk and have no problems discussing almost any topic on the various social medias available on the Internet.
Last month, the United States Supreme Court declined to hear three cases involving the comments made by students on social media in regards to their schools, principals, teachers and other students. By refusing to hear these cases, the Supreme Court let stand the rulings of the lower courts. Also, by not hearing these cases the Supreme Court left in limbo just exactly how far do students’ First Amendment rights go when it comes to off school communications.
Two of the cases come from the State of Pennsylvania. The ruling by the Third Circuit Court of Appeals which had previously stated “off campus speech” unless it causes a major disruption of school cannot be policed by school officials remains intact.
The cases stemmed from two different sets of facts. In one case an eighth grade girl put up a fake profile of her principal and classified him as a “sex addict”. She further went on to claim that the principal enjoyed “hitting on students” in his office. Originally, the United States District Court Judge found the postings to be vulgar and lewd and sided in favor of the school. On appeal however, the Third Circuit Court of Appeals overturned that decision stating that although it might have been vulgar it was so juvenile that no one could take it as anything other than a hoax.
The other case, again out of Pennsylvania, again used “My Space”. In this case, the student had claimed that the principal was a drug user, homosexual and a big whore. The Third Circuit ruled that comments such as those still deserved First Amendment protections because they did not cause major disruption to the school and because they were done off campus and out of school jurisdiction.
Yet, the United States Supreme Court also let stand a West Virginia case in which a female student was suspended for creating an on-line site that called another girl a slut and accused her of having herpes. The suspended student had sued the school claiming that she had First Amendment rights to make these comments and that they were made off campus and did not affect the school. However, this argument was rejected.
It is hard to reconcile the two Pennsylvania decisions with the West Virginia decision. Usually when cases such as these are unreconcilable the United States Supreme Court jumps in and gives guidance as to what it intends the law to be. The silence by the Supreme Court by not taking these cases leaves First Amendment rights and freedom of speech in limbo as to students when they are off campus and communicating through the various social media. The last time the Supreme Court delved into this area was the famous “bong hits for Jesus” case. In that case, in a five to four decision, the Supreme Court rejected the claim by the student that the First Amendment protected his holding a banner on the sidewalk with the famous quote. The student was suspended and had sued because of that suspension, but ultimately the Supreme Court had ruled that the suspension was valid. Obviously, these cases are somewhat different than the Bong hits for Jesus case. These were done on social media, away from school, as opposed to the potentially disruptive sign by school grounds.
These cases show the infighting between the First Amendment and traditional institutions of authority as technology advances, as communication devices expand and as we all have greater voices that can be heard by more and more people. The comments by the students in these cases hardly would have raised eyebrows if spoken between friend and friend, overheard by another. Yet, because of the nature of the internet, and the mass media social networks, comments that used to be reserved for special friends are now published to friend, foe and strangers alike.
It would have been appreciated had the Supreme Court issued an opinion bolstering First Amendment rights in all three cases. As said before, their lack of decision gives no clear guidance. If anything can be gleaned from the discrepancies and the lack of decision by the Supreme Court it would be that attacks on fellow students can be more disruptive to the school environment then obviously satirical or ridiculous comments made against administration. The administration needs to have a thicker skin while students will be protected from slurs.
If that in fact is the take from these cases, the decisions are not founded in the bedrock of the First Amendment. Rather, if this is the take on these decisions, the decisions are more of policy than First Amendment juris prudence. If they were based solely on First Amendment rights and speech and press, then the Supreme Court would have taken these cases and ruled in favor of the speech all three times.