The 4th Circuit says that it can
This past summer, the U.S. Court of Appeals for the Fourth Circuit ruled against student Kara Kowalski on her First Amendment claim. The case arose after Kowalski was suspended by her high school based on scurrilous remarks she had made about another student on a MySpace discussion page, while she was in her own home, on her home computer. Now, Kowalski is seeking Supreme Court review.
As with many First Amendment cases, the facts of Kowalski’s case aren’t pretty. First Amendment plaintiffs are typically a rogues’ gallery, and even courts that rule in their favor usually give their blessing to the principle, not the person. And surely, no one would defend what Kowalski said here—only her right to say it.
The MySpace webpage Kowalski created was called “S.A.S.H,” which, she testified in her deposition, stood for “Students Against Sluts Herpes.” However, a classmate who accessed the site said that “S.A.S.H” actually stood for “Students Against Shay’s Herpes”—with “Shay” referring to a fellow student who was discussed at length on the webpage.
At Kowalski’s invitation, about two dozen students from her high school joined the MySpace group associated with the webpage and thus accessed the webpage. Further discussion on the webpage then seemed to confirm that “S.A.S.H.,” and thus the herpes claim, in fact referred to the student known as Shay N., and not to “Sluts.” (Last names of juveniles are typically not used in judicial opinions in order to protect their privacy.) Shay N. was also called a “slut” on the webpage.
When Shay N.’s parents learned about the webpage, they filed a harassment complaint on their daughter’s behalf with the school. Kowalski was then suspended for violating the school’s rule against creating a “hate website” and its policy against harassment, bullying, and intimidation.
Thus, the core question the Fourth Circuit addressed was whether the policy could, consistent with the First Amendment, reach outside the school and into Kowalski’s home.
The Fourth Circuit held that it could. More specifically, it held that Kowalski’s suspension was constitutional because she “used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which ‘materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.’”
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It seems to me that this case should have been handled under defamation law without the school stepping in. And if the accusation was true, it should have been protected as free speech. Another interest is where does the school get the authority it assumed? Is it enshrined in State or Federal law?
14 comments:
If this ruling is allowed to stand, school authorities, (ie. the State) can invade your privacy anytime they choose. This case is simply more proof that in today's America, actual privacy is nothing more than an illusion.
I didn't know libel and slander is protected speech.
There are legal mechanisms to deal with libel and slander. A directive issued by some bureaucrat is, or should not be, one of them.
Anon 3:53: When did the trail happen that found this girl guilty of either libel or slander?
It is a school's prerogative to punish conduct that disrupts the school environment. Simple as that. And to suggest that this is a matter of "bedroom privacy" is laughable. While the conduct may have - by a matter of happenstance as to where the computer was located - occurred within a bedroom, it is in no way secluded, private conduct. To the contrary, it's very public comment presumably designed to have a direct effect within the school. (I can't think of any other reason there is reference to "students")
Plus, there's a long line of cases talking about the fact that a minor does not enjoy First Amendment protections similar to those of an adult. I would think this is precisely why.
The judges in this case should all be removed from the bench and be fired
Anon 8:15,... have you thought about some Thorazine treatments?
Despite those who have attacked Anon 8:15, he dead on point. If one actually reads the opinion, one sees how the MySpace page quickly became the talk of the school. In fact, the first person to post on the page after it was set up, posted from a school computer.
He s also correct in that there is no other reason to name the page "Students..." if it were not directed at and for kids at the school.
The case he is looking for when he discusses precedence is Tinker v Des Moines, and not only has he stated the ruling correctly, he has shown why it is on point and applicable.
Insulting him without a viable counter argument may be the way of the internet, but ultimately it is childish.
Oh my, this is a slippery slope. For example, your child gets into a shouting match with another kid on your street, hurling various epithets. This gets publicized by kids at school. School administrator suspends your kid for something that didn't occur at school. You okay with that? If not, the same thing here involving the internet is somehow different?
School administrator suspends your kid for something that didn't occur at school. You okay with that? If not, the same thing here involving the internet is somehow different?
It depends on if there is a disruption at the school. It is not so much the words, but their affect on the school and the distraction from the educational environment.
Take your example further.... say the words that are exchanged between the two kids escalate to a gang war on campus. Are you saying the school should ignore that since the initial exchange started off campus?
As Tinker says:
But conduct by the student, in class or out of it, which for any reason -- whether it stems from time, place, or type of behavior -- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education., 363 F.2d 740 (C.A. 5th Cir.1966).
It is very similar to yelling "Fire!" in a crowded theater. It is not the words themselves, but the effect they have on people and the rights of others.
The problem here is that the Schools, Courts etc ever got involved in the first place. Why did the parents not meet together and reign in their children? It is their responsibility, not the School's, Court's or Government's.
I suspect it's because the targeted girl's parents didn't take the right first step but it's also quite possible that they did and the offensive girl's parents failed to respond in the appropriate manner.
I suspect it's because the targeted girl's parents didn't take the right first step but it's also quite possible that they did and the offensive girl's parents failed to respond in the appropriate manner.
Shay N's parents did call the parents of the other child and were rebuffed. The only result was that the girl changed the name of the MySpace page away from "Students Against Shay's Herpes" to "Students Against Sluts Herpes," but kept all of the offending posts that referenced Shay N. on the site.
Also the site had affected Shay N's life at school. Kids were walking down the hall laughing and giving her some sort of derogatory signal that she had herpes and calling her a slut.
The parents were right to take their complaints to the school as the school was where their daughter was being targeted because of what was said on the web site.
Thank you Anon 4:22 for the additional information.
Not completely related but let this be a reminder the next time some woman comes along claiming that if they ran the world there would be no more wars. Women (and girls) are often the most vicious of people. This is a claim I keep seeing and it's past time to show it for the lie that it is.
Anon 6:29.
You're welcome.
I wish Kowalski's parents had stopped it. Their inaction shows a lack of class and civility that is beyond my comprehension.
The other thing that the ruling dismissed was the claim by Kowalski that her rights of "due process" were violated. She claimed that although she was given a school handbook with the non-harassment policy in it and had signed a form acknowledging she read, understood and would abide by it, the school was wrong in suspending her. She actually claimed she thought the punishment in the handbook would not be applied, and therefore she felt she was denied her right to due process.
There are two victims in this case. The first appears to be Shay N. I don't know whether her actions warranted the attacks by the other kids, but it seems highly unlikely.
The second victim is the rest of the world who now has to live with the knowledge that Kowalski's parents bred, and Kowalski herself may, in the future, breed.
Some actions are morally indefensible and Kowalski's actions and those of her parents fit the bill.
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