I’m almost ashamed to admit this,* but when I was a senior in high school, I was suspended for cursing.
I’m sure that you can relate: I was working on a class project, receiving little or no help from many in my group. As I was trying to do put the finishing touches on it, someone came in and started giving opinions about how I should have done it and why their way was better.
Being an emotionally immature 16-year old who was already annoyed with the lack of support I received on the project, I responded with a two-word phrase commonly heard on shows like The Sopranos. The teacher walked in just in time to hear it, yada yada yada, I had an unscheduled three-day vacation.
Why should you care, Reader of Michigan Lawyers Weekly?
Well, apparently I should have hired a lawyer (from The Detroit News):
Hart took the problem to the school’s vice principal and principal, who took it to a district administrator, who asked the district’s lawyers what they could do about it. In the end, citing "cyber-bullying" concerns, school officials suspended the girl who posted the video for two days. That student took the case to federal court, saying her free speech rights were violated.
Last month, a U.S. District judge in Los Angeles sided with the student, saying the school went too far.
In that case, a student** posted a video on YouTube calling another female middle school student a “brat” and “slut” and, of course, texted everyone they knew about it. The girl’s embarrassment led her to her guidance counselor’s office, which led to a chain of events in which the offender who posted the video was suspended.
Judge Steven V. Wilson wrote:
"To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul (of the law)," judge Stephen V. Wilson wrote in a 60-page opinion.
"The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments," he wrote.
“Cyber-bullying” has become a big issue of late as members of Congress and state legislatures are trying to make laws to regulate the effects of when the mean things kids say are amplified to a mass audience online.
In some cases, the subject hasn’t even been a student.
In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the Web site, the student referred to the principal as a "big steroid freak," and a "big whore," among other things, and stated that he was "too drunk to remember" the date of his birthday.
District Court Judge Terrence McVerry found that even though the profile was unquestionably "lewd, profane and sexually inappropriate," the school did not have the right to restrict the student’s speech because school officials were not able to establish that the profile caused enough of a disruption on campus.
"The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the world-wide web," he wrote.
That case is pending in the U.S. 3rd Circuit Court of Appeals.
In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for "cyber-bullying." Katie Evans had created a Facebook page criticizing an English teacher as "the worst teacher I’ve ever met," and invited others to express their "feelings of hatred."
Her attorney, Matthew Bavaro, said the reach of the Web was irrelevant to whether a student is allowed to express themselves freely.
"The audience, whether it’s one person or 1 billion people, doesn’t change that Katie still had a First Amendment right," Bavaro said.
Opinions from courts and law professors seems to be unanimous:
Eugene Volokh, a First Amendment expert and law professor at the University of California, Los Angeles, who has criticized a bill in Congress that would make cyber bullying punishable by as long as two years in prison [said,] "People don’t appreciate how much the First Amendment protects not only political and ideological speech, but also personal nastiness and chatter. … If all cruel teasing led to suicide, the human race would be extinct."
* “Ashamed” probably isn’t the right word. It’s not like I have sleepless nights about it.
** You probably won’t be surprised to find out that the case arises from Beverly Hills, California and that the attorney for the student who posted the video is her father. The girl was awarded $1 in damages and the suspension removed from her record.