Rational Outrage

Whether or not students can be punished for speech outside of school has become a controversial topic recently and the ruling, at least so far, is a little strange: it seems that student speech outside of school is protected, so long as it’s ineffective. That’s because legal precedent suggests that students may be punished for speech outside of school if that speech carries with it a reasonably foreseeable risk of coming to the attention of school officials.

A federal court ruled that a high school student could be penalized speech on her personal blog, and the state legislature promptly responded with a bill to ensure that students could not be punished for such actions. The battle is far from over; the federal court ruling is binding precedent in only one district, and the statute—if passed—will be effective only in one state. It will be a long time before the dust settles on this issue.

Student free speech rights have been the subject of hot debate since at least the Vietnam era. At that time, the United States Supreme Court said that students didn’t check their free speech rights at the door, and ruled that black arm bands protesting the war were protected speech. But the ruling made it clear that there were limits. In the subsequent years, the question as to what student speech is protected and what is “disruptive” in such a way that schools are entitled to regulate it has been litigated again and again. Exactly what speech is protected, in what context, and from what kind of punishment are all unsettled questions.

But recent cases have incorporated a new element that is as fascinating as it is disturbing. Apparently, student free speech was all well and good when no one was really listening, but now that students might actually get their message out, it’s a whole different ballgame. The recent Connecticut decision reasoned:

Perhaps more importantly, we 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. As the case before us demonstrates, we are decidedly not in the world confronted by the Second Circuit in Thomas.

This reasoning isn’t quite as shocking as it appears at a glance. The court isn’t blatantly announcing that “free speech” is protected so long as students aren’t very effective in getting the word out, but now that they have a wider audience more limitations are in order. The court couldn’t reason that, of course—it would undermine the meaning and purpose of the protection of free speech. The reasoning, carried over from a 2008 decision, is this:

the line between on-campus and off-campus speech is blurred with increased use of the internet and the ability of students to access the internet at school, on their own personal computers, school computers and even cellular telephones. As technology allows such access, it requires school administrators to be more concerned about speech created off campus – which almost inevitably leaks onto campus – than they would have been in years past. J.S. v. Blue Mt. Sch. Dist., No. 3:07cv585, 2008 WL 4279517, at *7 n.5 (M.D. Pa. Sept. 11, 2008).

It’s a valid point and, in addition, the decision in the Connecticut case hinged at least as much on the fact that the punishment related only to exclusion from extracurricular activities—which precedent deems a privilege and not a right—as it did with the speech itself.

But whether or not that was the initial intent, the ramifications are clear: student speech outside of school can’t be punished unless it’s getting the job done. That can’t be what our forefathers had in mind.