If Google results are any indication, there are a lot of folks out there calling their teachers "douchebags" on LiveJournal. If any of them live in Connecticut, though, they may want to consider taking those journals private in light of a federal court ruling issued earlier this month, which upheld the right of public school administrators to discipline a student for speech on her personal blog.
Ars first covered the case of Avery Doninger—at the time a recent graduate of Lewis S. Mills High School—this past summer. Following a dust-up with school administrators about the possible cancellation of a repeatedly-postponed student concert, Doninger fumed on her LiveJournal about the "douchebags in central office" and urged her fellow students to call or e-mail said douchebags in order to express their displeasure. (The post asserted that the concert had, in fact, been canceled, though school officials say Doninger was wrong about this.) When the school retaliated by barring Doninger from running for reelection to her seat on the student council, Doninger sought to force a rerun, claiming violation of her First Amendment rights. The Court of Appeals for the Second Circuit declined to do so, however, noting that schools enjoy greater discretion in limiting participation in extracurricular activities than in (say) inflicting punishments like expulsion, and ruling that the post was subject to school authority because it had "a reasonably foreseeable risk [of coming] to the attention of school authorities."
Now, most of a lawsuit in which Doninger sought to recover damages from school officials has been thrown out by a lower court, which held that administrators enjoy a qualified immunity from suit for official conduct that does not clearly violate a well-established right. Citing the blurry line between "on-campus" and "off-campus" speech in the Internet era, the court acknowledged that current law gives no clear answers to the question of where students' rights to free online speech end and the authority of schools to enforce discipline begins.
Forty years ago, the Supreme Court's seminal ruling in Tinker v. Des Moines rejected the idea that students "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," affirming the right of students to protest the Vietnam War by wearing black armbands to school. But the court also made clear that the First Amendment did not prevent schools from punishing speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others," while a later ruling made a similar exception in the case of vulgar or offensive language.
Schools' authority to restrict student speech has since been extended to cover school sponsored events that take place away from campus. But courts are still struggling to figure out how to deal with private student speech that, via the magic of the Internets, easily makes its way into the classroom. Referring to a 30-year-old case in which the Second Circuit affirmed the right of students to publish an offensive off-campus newspaper, the court wrote:
[W]e are not living in the same world that existed in 1979. The students in Thomas were writing articles for an obscene publication on a typewriter and handing out copies after school. Today, students are connected to each other through email, instant messaging, blogs, social networking sites, and text messages. An email can be sent to dozens or hundreds of other students by hitting "send." A blog entry posted on a site such as livejournal.com can be instantaneously viewed by students, teachers, and administrators alike. Off-campus speech can become on-campus speech with the click of a mouse.
This month's ruling did not do much to clarify those boundaries—it simply noted that officials could not reasonably be held liable for their decisions given the confused state of the law, whether or not future courts might hold such decisions to conflict with the First Amendment. But the line of reasoning endorsed by both the district and appellate courts would, in effect, erase that boundary with respect to online speech about a school, whether or not it occurs in a school.
One part of Doninger's suit will proceed to trial, however: School officials prevented several students from wearing "Team Avery" T-shirts into an election assembly after Doninger had been barred from running, though the shirts didn't appear to violate any existing rule or otherwise threaten disruption. Presumably, the facts there were so clearly reminiscent of Tinker that it seemed necessary to let a jury decide the question.
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