Schools Walk Fine Line In Punishing Students’ Online Speech

Schools are walking a fine line between not restricting their students' First Amendment rights and attempting to curb what some perceive as abusive cyberbullying of faculty members. The Wall Street Journal reports that North Carolina has taken the next step beyond occasional, piecemeal discipline by making internet postings that are deemed to "intimidate or torment" teachers a crime. Those found guilty of breaking the new law could face fines as high as $1,000 per incident.

There's a long legal tradition of giving schools wide latitude in regulating student behavior while they are on school grounds, but how monitoring speech that takes place off campus — and especially over the internet — conflicts with the kids' freedom of speech and expression hasn't been thoroughly tested. North Carolina lawmakers might feel like they have no choice but to cast the net beyond the building walls, since the teachers have begun to feel the impact of harassment that takes place entirely on social media sites like Facebook and Twitter.

Postings aren't the only thing curtailed, however. The law also makes it a crime to impersonate someone with an intent to harass or torment.

Critics, however, argue the law risks trampling on mere venting and other less inflammatory forms of expression.

"Our concern is that we don't throw the First Amendment out the window in our haste to get the kid who is calling the principal bad names on Facebook," said Frank LoMonte, executive director of the Student Press Law Center in Arlington, Va., a national group that advocates for students' free-speech rights.

It is unclear how the exception to free speech protection for students set out by Supreme Court's 1969 Tinker v. Des Moines decision — which allowed administrators to restrict speech as long as it was creating a disruption to the learning environment — might extend to the internet. Two recent decisions by the Third U.S. Court of Appeals found that punishing two separate students for creating fake social media profiles of their principals was unconstitutional since both students created the content offline and were clearly parodies.

Yet in a separate case in Connecticut last year, the Second U.S. Circuit Court of Appeals found administrators were within the law when they disciplined Avery Doninger, a high-school student, for posting a message to her blog encouraging people to call school officials a profanity in order to protest the school's "jamfest" being canceled.

The court justified the punishment by saying that it created a substantial disturbance to the learning environment — the exception set out by Tinker v. Des Moines. Meanwhile, the Supreme Court, who will most likely prove to be the final arbiter on this issue, has not yet granted a writ of certiorari for any of the above three cases, nor the fourth one dealing with students-to-student internet harassment.

09 24, 2012
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