No Off-Campus Free Speech for YOU, You Naughty High School Student!
No Off-Campus Free Speech for YOU, You Naughty High School Student!
19 January 2009 at 4:03:54 PM
Isaw this ruling from Judge Mark Kravitz of the US District Court that basically says that a high school student who posts something that the school might not like, ie, criticizing an action the school takes, and does it NOT ON SCHOOL TIME, NOT ON SCHOOL PROPERTY, doesn't have free speech rights... Why? Because, um, somebody ON school property might READ THE BLOG!
School officials acted within their rights to discipline a student for an Internet posting she wrote off school grounds, a federal judge has ruled.
U.S. District Court Judge Mark Kravitz rejected Avery Doninger’s claim that administrators at Lewis B. Mills High School violated her rights of free speech and equal protection.
She also alleged they inflicted emotional distress when they barred her from serving as class secretary because of the 2007 posting, which criticized administrators for canceling a popular school activity.
Kravitz’s ruling relied partly on the ambiguity over whether schools can regulate students’ expression on the Internet. He noted in his ruling that times have changed since 1979, when a landmark student speech case set boundaries for schools regulating off-campus speech.
Now, he wrote, students can send e-mails to hundreds of classmates at a time or post entries that can be read instantly by students, teachers, and administrators.
“Off-campus speech can become on-campus speech with the click of a mouse,” Kravitz wrote.
It isn't as if students are sending hundreds of emails within the school are they? If so, you mean to tell me that the IT person in charge of the school can't block emails? Heck, in GRISD, the IT person is setting up blogs for the teachers-I assume it isn't the students who have blogs, but if they create a blog or Facebook or Myspace account from their homes, it isn't on campus. IF the school then wanted to block Facebook, etc from being seen, any competent IT person can do that.
Kravitz cited previous rulings in his decision that school administrators were entitled to qualified immunity. That shields public officials from lawsuits for damages unless they violate clearly established rights that a reasonable official would have known.
The officials couldn’t reasonably be expected “to predict where the line between on- and off-campus speech will be drawn in this new digital era,” he wrote.
Well, then perhaps there shouldn't BE a distinction between one's free speech rights on or off campus if a person who ought to reasonably know whether the school district provides that electronic platform can't tell the difference. Seems to me that whole decision was more about whether a school could be sued if the people running it are not competent enough to know the difference between on or off campus speech.
Totally ridiculous. I'm glad to read that the attorneys are going to take this to the Supreme Court.
Update: Feb 9 2009- looks like the student is going to appeal GOOD FOR HER. Retaliating against her for writing something on her own computer from home on her own blog is WRONG. especially for a dang school -New Haven Register
Doninger, then a Student Council member and junior class secretary, was organizing an annual student rock concert, Jamfest. But when Principal Karissa Niehoff said logistical problems prevented the concert from happening on the date favored by students, Doninger and three other students went to the school computer lab and sent an e-mail message to many local residents, urging them to protest Niehoff’s decision.
That night, Doninger posted a blog entry that said: “Jamfest is cancelled, due to douche bags in central office.”
Doninger also encouraged her readers to write to Region 10 School District Superintendent Paula Schwartz “to piss her off more.”
In his ruling, Kravitz rejected Doninger’s claims that administrators violated her rights to free speech and equal protection and intentionally inflicted emotional distress when they punished her by refusing to let her run for class secretary. Two other courts previously issued similar rulings.
I'm affraid that this writer isn't exactly correct. The court reached its ruling due to the fact that the speech materially, and substantially disrupted the work and discipline of the school, not just because the school found out about it.
That's exactly the reason I presume she is appealing that decision. The school DID find out about her blog entry and also was receiving phone calls, emails etc because of her call to action that she made from her own computer. What right does the school have to claim that someone's free speech OFF CAMPUS can be chilled because it might disrupt the work and discipline of the school. Imagine this in another scenario- that there's a parent who, sans the obscenity, believes some action needs to be taken to express an opinion to the school and sends out a mass mailing telling everyone to notify the school, call them up, email, etc. Should the school say "We find that that citizen's right to express him or herself disrupts our work, so we are going to retaliate". More detail on this case.
Instead, the defendants obtained summary judgment on the blog claim because they were entitled to qualified immunity. Applying the two-part qualified immunity test established in Saucier v. Katz, 533 U.S. 194 (2001), while acknowledging that Saucier was under review by the U.S. Supreme Court in Pearson v. Callahan, the court examined the facts to determine: (1) whether a constitutional violation occurred, and, if so, (2) whether the violated right was clearly established at the time. Regarding the first prong, the court revisited its analysis in its earlier ruling denying the preliminary injunction, in which it had concluded that the principle established in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)—that schools can restrict lewd, vulgar and plainly offense student speech—also applied to off-campus speech. While acknowledging that the Second Circuit had declined to decide this point and that this “might have been intended to gently telegraph to the [district court] that it erred in its analysis of Fraser,” the district court stated that unless and until the Second Circuit ruled otherwise, it would not change its position.
Even if Fraser does not apply to off-campus speech, the court continued, the defendants still would be entitled to qualified immunity because the constitutional right was not clearly established at the time of the alleged violation. The court defined the right at issue as “the right not to be prohibited from participating in a voluntary, extracurricular activity because of offensive off-campus speech when it was reasonably foreseeable that the speech would come on to campus and thus come to the attention of school authorities.” This right, so defined, was not clearly established at the time of their actions, because (1) it is “not clear that participation in extracurricular activities should be considered a right at all,” especially in the context of the First Amendmend; (2) given the Second Circuit’s explicit refusal to decide the issue in the present case, there could hardly be any debate that Fraser’s applicability to off-campus was not clearly established; and (3) the case law Avery cited in support of the proposition that it was clearly established that school officials do not have the authority to regulate off-campus speech was decided before the advent of Internet speech. Noting that the jurisprudence in this area is in a state of flux and “will need to evolve in order to address this new environment, and the Second Circuit has begun to address it in cases such as Wisniewski,” the court concluded: “If courts and legal scholars cannot discern the contours of First Amendment protections for student internet speech, then it is certainly unreasonable to expect school administrators, such as Defendants, to predict where the line between on- and off-campus speech will be drawn in this new digital era.”
Can't wait to see what happens on appeal, because I don't think school officials have any business trying to decide where the line is drawn when a child does something on his or her own time on private equipment.
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