Commentary
Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
A Pennsylvania eighth-grader recently learned a hard lesson: At least one federal judge says school officials can reach off-campus and into cyberspace and the home to punish what the court agreed was a “vulgar and lewd” Web posting aimed at a school principal.
Failing in her First Amendment-based argument, the student at Blue Mountain Middle School in Orwigsburg, Pa., did not gain reversal of a relatively minor punishment, a 10-day suspension from classes. But for an administrator who admirably decided to forgo his legal options, she could have faced a criminal charge of harassment and a civil lawsuit for defamation.
The negative nature of the Web posting is not at issue. The student put up a fake site that included lewd remarks about the principal and his wife, and made it appear that the administrator had identified himself as a “sex addict” and a pedophile.
The longest-lasting impact may well be that yet another court decision expands the legal legacy of an oddly nicknamed Alaskan lawsuit decided by the U.S. Supreme Court in 2007, the “Bong Hits 4 Jesus” case.
In the Pennsylvania case, two students at Blue Mountain Middle School were disciplined in December 2006 for dress-code violations. About three months later, the pair used a home computer to create the fake page on MySpace.com, a social-networking Web site, using a photo of the principal.
The students tried to limit online access, but a printed copy of the page made its way to school, prompting the suspension.
One of the students and her parents filed a federal lawsuit challenging the suspension. They argued that the Web site clearly was protected by the First Amendment as a parody, that it made no threatening statements and that no school computers were used to create or view the material.
One of the main defenses cited by the student and her parents was a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School Board, upholding student free expression. It included the hallmark observation that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
But federal district judge James M. Munley ruled in J.S. v. Blue Mountain School District that Tinker was concerned with protecting “political speech” that some administrators did not like. And, citing cases that followed Tinker, the judge held that Blue Mountain school officials had authority to order the suspensions because of the lewd remarks, even though the in-school chatter about the page didn’t reach the Tinker-required level of “substantial disruption.” He also noted Tinker does not protect speech that invades the rights of others.
Besides providing another warning to students that what may seem unobjectionable at home may bring serious trouble in the wider world, the Blue Mountain decision is yet another court ruling citing the “Bong Hits” case — Morse v. Frederick — as one of the justifications for extending school authority off-campus — onto the Web, and even into the home.
In “Bong Hits,” a principal crossed a public street across from school grounds to take down a student-held sign that she said — and the Supreme Court agreed — encouraged marijuana use. Chief Justice John Roberts’ opinion took pains to focus on drug-related speech, noting: “There is some uncertainty at the outer boundaries as to … how far can school officials reach into the home” on matters that should solely concern parents or the police.
Still, Judge Munley held that the Morse principles and legal reach applied in the Blue Mountain case because both cases involved potentially unlawful actions.
Some First Amendment advocates found that Roberts’ tightly written opinion — and the facts of “Bong Hits” — only minimally extended school authority over student speech. But since then, several courts around the nation have cited the case in extending the reach of school policies to non-school hours and non-campus locations on matters as varied as violence, student press and now defamation.
It would be a travesty if the great constitutional notion of Tinker — that it’s worth protecting the right of students to express themselves on matters of public concern, even to the discomfort of school officials — ultimately falls victim in law to a creeping set of decisions involving childish Internet pranks intended to hurt or harm, not to inform or illuminate.
Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].
