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Judge Munley is So Out of My Top 8
Apart from the politics of minors' free speech rights in general, I think there are at least three logical problems with the ruling. The first is the judge's argument that even though on-campus speech and off-campus speech are separate, if the off-campus speech is offensive enough, that elevates it to the point of giving the school jurisdiction over it. The second is the judge's comparison between a student's parody MySpace page, and the mock-threatening rap lyrics that got a student expelled in another court case -- a court ruled that the school overstepped their bounds by expelling the student for the rap song, but Judge Munley said that a MySpace page jokingly calling the principal a "sex addict" was actually more offensive than the violent rap lyrics. The third is the argument that because the student's conduct was so offensive that it could have theoretically been criminally punished if the principal took her to court, that made it acceptable for the school to take the easier route of suspending her.
All right, all together now: I'm not a lawyer, and probably neither are you. But as I've said before, if you put 10 judges in 10 separate rooms and asked them to decide this case (or any other case) independently of each other, you'd be very unlikely to get a consensus anyway. The importance of courts in a civilized society is that they provide a peaceful means of settling disputes, not because we expect that the judges will actually get the "right" answer -- that's why we don't have a crisis of faith in the system every time the Supreme Court splits 5-4. (By contrast, when physicists work on problems involving car safety and satellite trajectories, we do care about them getting the "right" answer, and so physicists are held to a higher standard than judges -- we expect that 9 physicists working on the same problem in separate rooms would all get the same result.) That goes for the rest of us too -- I have no independent confirmation that I'm right, and anyone ranting with supreme confidence that I'm wrong, has no independent confirmation that they're right, either. The best we can do is try to make arguments that are logically consistent, and check that even if they are free of internal contradicions, that they also can't be carried through to an absurd conclusion.
To wit: Judge Munley's decision cites four prior cases that involved students making offensive or disruptive speech (although still not as offensive as the MySpace page in this case calling the principal a pedophile) while on school property or at school events: Bethel School Dist v. Fraser, Hazlewood Sch. Dist. v. Kuhlmeier, Morse v. Frederick, and Klein v. Smith. In those cases, the courts ruled that the discipline did not violate the students' rights because the students were at school events or on campus when they made the statements at issue. Judge Munley then cites another list of cases in which students published speech that was generally more offensive than the incidents in the first list, but did it on their own time, away from school: Flaherty v. Keystone Oaks Sch. Dist., Latour v. Riverside Beaver Sch. Dist., Killion v. Franklin Regaional Sch. Dist., and Layshock v. Hermitage Sch. Dist. In all of these cases, the courts ruled that the school districts violated the students' rights by punishing them for off-campus speech. So far, all eight of these cases cited by Munley, followed the rule: on-campus or school-affiliated speech is punishable, off-campus speech is not. (Munley cites only one case that was an exception to this rule: Fenton v. Stear, in which the court upheld the punishment of a student who was off campus when he loudly referred to a teacher as a "prick.")
But then, Judge Munley argues more or less that the speech in this case is so offensive (calling the principal a sex addict and a pedophile), that you're allowed to lift it out of the category of off-campus speech and treat it by analogy to earlier cases involving on-campus speech. Munley wrote:
In the instant case, there can be no doubt that the speech used is vulgar and lewd. The profile contains words such as "fucking," "bitch," "fagass," "dick," "tight ass," and "dick head." The speech does not make any type of political statement. It is merely an attack on the school's principal. It makes him out to be a pedophile and sex addict. This speech is not the Tinker silent political protest. It is more akin to the lewd and vulgar speech addressed in Fraser. It is also akin to the speech that promoted illegal actions in the Morse case.
The content itself is "akin" to the offensive speech in the earlier cases, but what difference does that make, if the speech didn't take place in school? Getting back to first principles: Why does the First Amendment generally grant the freedom to call people "dick" and "tight ass"? Because it doesn't hurt anyone except to the extent that it hurts their feelings, and you don't have a right to unhurt feelings. Because the remarks can be made in the context of general legitimate criticism of someone, which might motivate them to change the behavior that led someone to call them a "tight ass" in the first place. Once these premises are accepted, it doesn't matter if you ratchet up the offensiveness from calling someone a "dick" to calling them a "fucking dick." It does change the analysis if you move the speech to a different setting, e.g. standing up in class when people are trying to learn, and shouting that the principal is a "fucking dick." But that's not what this student was doing.
After all, if the regulation of off-campus speech were justified in order to prevent harm or embarrassment to the principal, carry that through to its logical conclusion: Suppose a former student, who had since graduated, created the parody MySpace page and e-mailed it to friends at the school. The school's "interest" in preserving order and protecting the principal's reputation, would be exactly the same -- and yet no court has ever suggested that the government can punish a former student for speech outside of school (unless the speech rises to the level of threats or libel, which anyone can be punished for, regardless of the former student-principal relationship). To be punished, the former student would have to bring the speech into the school, where it could cause a disruption (and where, as a non-student, they could be banned from the premises anyway).
As for the second problem, apart from the issue of whether offensiveness alone is enough to give the school the right to punish a student for off-campus speech, there is the question of what criteria Judge Munley used to determine that the MySpace page was more offensive than the student off-campus speech in previous cases. In Latour v. Riverside Beaver Sch. Dist. , the court found that a student's rap lyrics which made mock threats toward another student, identified by name, could not be treated as a true threat because they were the kind of boastful posturing that rappers are known for (apparently including the ones in junior high school these days). Similarly, the MySpace page created in this case, began with the words:
yes. It's your oh so wonderful, hairy,
expressionless, sex addict, fagass, put on this world
with a small dick PRINCIPAL
and hopefully the principal would agree that any reasonable reader would know this was not written by him. So if the content of the speech in both cases was clearly not meant to be taken seriously, a fair apples-to-apples comparison would be to ask which is the more offensive topic: violence, or a joke about a principal listing among his "interests": "detention, being a tight ass, riding the fraintrain, spending time with my child (who looks like a gorilla), baseball, my golden pen, fucking in my office, hitting on students and their parents"?
What Judge Munley seems to be saying is that joking about murder is more acceptable than joking about a principal hitting on students. While I think this is absurd and offensive to victims of violence, I have to admit that this is at least consistent with standards of censorship in the U.S. It's a tired old complaint, but it's never been satisfactorily answered: Why can you show a character being killed on television, but a sex act is taboo? Why are the most offensive swear words derived from sex acts and sex organs, but there are no equivalent words for murder that are banned from the airwaves? What's worse?
Third, the judge seemed to adopt the position that because the student could theoretically have been prosecuted for creating the fake MySpace profile, that made it acceptable for the school to impose a milder punishment that circumvented the court system. Judge Munley wrote:
The speech at issue here could have been the basis for criminal charges against J.S. Additionally, the state police indicated to McGonigle that he could press harassment charges based upon the imposter profile. (Dep. McG, 98- 99). McGonigle indicated that he would not press charges, but asked the police officer to contact the students involved and their parents to inform them of the seriousness of the situation. (Dep. McG at 99, 163-64). The officer summoned the students and their parents to the state police station and discussed the seriousness of the profile and that McGonigle would not press charges.
It's at least debatable whether the MySpace page, which was an obvious parody, could have been the basis for criminal charges. But suppose we grant the judge that point. In that case, even if we know that someone's actions would have gotten them a more severe punishment from the courts, is it acceptable to give them a lighter punishment for something else, just because that's simpler for the school?
No. First, because it fosters disrespect for the rule of law in general: If you committed X, then you should be punished for X, according to the rules set up for punishing X. When Judge Jackie Glass began O.J. Simpson's trial this month for robbing two men at gunpoint, she told jurors: "If you think you are going to punish Mr Simpson for what happened in 1995, this is not the case for you." She, like most sentient beings, probably believed privately that O.J. committed the murders in 1994, but she knew the rule of law was more important than the outcome of any one case, even a murder trial. Second, lighter punishments (such as a suspension from school) often come with a lower standard of judicial review, so you could end up getting an undeserved punishment, in cases where a proper trial for the actual crime at issue might have found that you should not have been punished at all. (Al Capone did get put away for tax evasion, but the court found that he was in fact guilty of tax evasion -- they weren't reaching that as a compromise to avoid trying him for his crimes as a gangster.)
To come clean, however, I have to admit that I have tried to egg judges down that route occasionally. I've taken spammers to court and gotten them to say, under oath, that they never sent any spam and didn't know what I was talking about, before I revealed a tape-recording of a conversation (recorded legally) in which they offered to send 5 million pieces of spam for $500, that the spams were routed out through a server in China to help defeat spam filters, etc. The idea was that the judge would get pissed at the spammer for committing perjury, but realize that it would be too much paperwork to prosecute that, so just bang them over the head with a thousand-dollar judgment for spamming, which would go to me. Unfortunately this can backfire if the judge is so opposed to anti-spam suits that no amount of evidence will convince them anyway. But even if it had worked, it would not be strictly correct to say that justice had been done -- perjury should be punished as perjury, even if only with a slap on the wrist.
So, I'm sure that Judge Munley was trying in his own way to do the right thing by preserving order in the school system, but he probably decided in advance what conclusion to reach, and came up with the arguments after the fact. Still, it may not be a loss for student rights in the long run. The ACLU, which represented the student, has not said whether they will appeal, and anyway, virtually all other caselaw so far has said that student speech off campus is protected, as Judge Munley himself pointed out.
Better for the kid to learn now that "free speech" is (and always has been) a crock of shit in the U.S. It's just one of those terms that we throw around to make ourselves feel superior to other countries. But when you take even the most cursory look at it, you realize it's as hollow as a reed. "The right to free speech" in reality translates to "The right to conventional, relatively non-controversial speech in a setting that will not upset anyone or be particularly noticed by anyone who might be offended or threatened by said speech." The second you attempt to break out of any one of those tight boundaries, you WILL find yourself in jail/kicked out of school/fired/persecuted or in some way silenced or punished.
That kid just learned one of the most important lessons in life: That what people SAY and CLAIM has little to do with what they DO and how they actually ACT. And that goes for the government, politicians, and just about everyone else. Just because some civics class says you have "the right to free speech" does not mean that you can actually ever speak freely in any real world environment without fear of persecution.
Consider it the first of many disillusioning life lessons, kid.
SJW: Someone who has run out of real oppression, and has to fake it.
Minors don't have rights.
That sounds like blatant libel.
The stupid girl should consider herself lucky for having it settled with a simple suspension rather than being taken to court.
This isn't satire, this isn't parody, this is just abusive stuff out of the mind of a teenager, they might think its "cool" but in fact accusing a principal in this heavily sensitive times of being a paedophile is just about as low and threatening as a student can get. This isn't free speech in the same way as a John Stewart gag is satire this is just abusive rubbish out of the mind of an immature kid.
Getting kicked out is the least of this kid's problems, they are lucky that they aren't looking down the barrel of a lawsuit with lots of damages attached.
Free Speech is critical to a well functioning democracy and its worth defending, but it isn't a license to just spout off crap. Hell even Spiderman movies know that "with great power comes great responsibility".
An Eye for an Eye will make the whole world blind - Gandhi
Doesn't mean freedom from consequence - its called responsibility.
IANAL, but my understanding was that with respect to employee conduct, sexual harassment does not make a distinction between harassing coworkers inside the workplace and outside the workplace, so long as they are actually your coworkers. So I could certainly see the rational, if not legal, argument for this ruling.
Speaking of IANAL, since when did Slashdot publish essays on law from someone who explicitly states he's not a lawyer (although he's taken people to court under very different circumstances from the article)? What makes them qualified to get a whole Slashdot article to themselves?
No kidding!!! What do you say at this point?
Uh huh.
Um, of course they will. You see, those are the consequences of your free speech. There has never been any real disagreement on this issue, you have free speech, and you have the responsibility to use it wisely.
Pretending like "free speech" means "say whatever the fuck I want with impunity, while simultaneously forcing others to accept my speech without exercising their own free speech (which is your primary complaint)" is bullshit.
Free speech never meant "say what you like with impunity" and anyone claiming otherwise is full of it.
To quote LongNoi "QZTR was right and won't leave me alone because I called him a moron when I was wrong" FYS
Judge was dead on right. The summary tries to steer the reader into thinking this is the Man stepping on Free Speech (it's parody, right! You can do or say anything when it's parody!) when it's really some poor guy, not even a public figure, getting publicly slandered by a kid.
Not to add that the era matters: in the 50's the kid could be calling the principal a Communist. These days, if she's hinting he's a sex offender, people are hyper-sensitive to that.
Kid needs to have life explained, in detail, without dessert.
To prove libel/slander, you have to prove three basic things:
1. The accusations are false
2. She knew the accusations were false
3. She had malicious intent
All three seem pretty easy to prove in this case. The girl's lucky the principle isn't suing her. Free speech is great, but kids like this ruin it by spouting off malicious garbage.
To further the discussion a little, with the internet being as pervasive as it is in our society it could be possible that someone was accessing this content at the school thereby bringing the comments to the campus of the school.
Even with this potential I do not believe that it should be within the jurisdiction of the school district to punish the offending party within their rules if the content was not created there, but it does provide an argument that it could be stated "on school premises".
I personally believe that the school district, and the offended party in particular should have the capability to pursue statutory damages if this is something that is truly libelous or damaging to the career of the educator. This does not, however, include the act that was taken by the school district in my opinion.
I totally agree that a suspension is an easy break for the kid, but...
Look at the precedence. If this ruling goes unchallenged, what's to prevent a school from suspending any student they like for posting something on their my-space page? A student could post a valid, non-libel complaint about one of their instructors, and get suspended for it even though the comment was made off school grounds/times and was not in violation of the law. And what if it gets into even more heated topics. A white girl in a southern Georgia town post pictures of her date with her new black boyfriend to a social networking site and gets a 3 day suspension from School, why? Because the principal is a racist. Take it to court, and he'll site this case as precedence. Given power and time someone will abuse it.
This is a pretty significant power grab being made by the school that dramatically shifts the existing boundaries of power. As a quasi-conservative, I can't fathom why anyone would want to have such a result. I mean, I entrust the school system with my son during the day. I expect that they will keep an eye on him and make sure he performs well and integrates with society. When he leaves school, he is my responsibility, not theirs. And if he posts some crap like this on the internet, it is MY job to discipline him, not the school's. If the Principal wants to be responsible for disciplining my son for things that happen out side of the school environment, he can talk to me, or he can talk to a lawyer.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
It seems like the writer of the article assumes that "actions done outside should shouldn't have consequences/effects/jurisdiction inside school." This is bullshit. Aside from the fact that this teen should be held up on charges of liable/slander (depending on whether said statements were made solely online), the fact is that actions corresponding to the institution apply outside of the physical premises.
I seem to remember plenty of cases where kids would be beaten by classmates outside of school grounds. The argument by the bullies was that it wasn't on school properly, and thus not in the school's concern (although this is a dumb concept in itself, for as such that would make it more of a police concern and/or an assault charge... a suspension seems a lighter consequence).
This is a school matter, as well as a legal matter, and - unless the principal does turn out to be at fault (which requires actual charges, evidence, and court hearings, not just hearsay) - as such should be fully within the school's jurisdiction to discipline. There's a big difference between writing something silly online like
"Mr X is a poopoo head" (infantile and easily disregarded)
or
"Mr X sucks donkey dong" (infantile, still more likely to be disregarded, but depending on scale may warrant detention)
In this case,
"Mr X molests small children in his office" is - by the nature of the comment - damaging to the reputation of the principal, and warrants both in-school (detention/suspension) and legal (civil and/or libel charges).
The fact is, people are often by nature willing to believe the worst in somebody. Even if it seems spurious, such a claim - because of its gravity, and prior histories of such instances - can be damaging simply because of the little nagging "it seems untrue, but what if..." thoughts it tends to bring up.
To those that disagree: if somebody posts up a MySpace page claiming that you are a flaming bisexual with a penchant for buggery of small children and animals... do you think that "free speech" should allow them a pass? How about when your future or current employer finds this page when checking into you online?
Can someone please explain to me why the school ought to have jurisdiction over activities that take place outside of school grounds, off school hours? I just cannot for the life of me understand the basis.
The school is there to provide necessary civil services, just like the fire department or infrastructure maintenance.
If my son were to slander the fire chief or the head of the department of transportation, it would be considered an abuse of power for them refuse to let my house burn down or to stop repairing the road leading to my house. Of course, if I were to threaten them with a knife while they were in the process of doing either of those things, I think they would be allowed to *stop* helping me.
If anything, there's been a strong move in this country *away* from allowing schools to punish students (the loss of their right to issue corporal punishment, for example).
This, to me, seems just like an extension of the specious assertion that schools have the right to drug-test students or prohibit them from participating in sports if they're guilty of alcohol-related offenses.
Furthermore, I very much doubt that the school would have expelled the student if they had committed similar libel against an individual not affiliated with the school.
I don't see any reason for circumventing the channels designed for dealing with libel other than the fact that they can, and it seems like a clear-cut abuse of power to exact personal revenge.
I think that being able to be suspended for something done completely outside of school is a horrible notion. At least the myspace page didn't imply that the principal supported bong hits for Jesus...
That being said, in the abstract it is an interesting situation. You are the principal and the student has done something like this. What do you do? I think that one option would be to treat it like other things that are banned on school grounds like alcohol or pornography. The school can't (or at least shouldn't) be able to control what they are doing at home but if they bring it to school then they are in trouble. So perhaps it would have been more suitable to suspend the students for looking at the website in school -- I'm sure they have some policy about looking at porn websites in school?
Then there's also the question of the parent(s). If your child had made a website like that, even if you thought that suspension was totally unwarrented, would you really defend your child and hire lawyers in this situation? Think about it, now everyone knows your kid has really really poor judgment and you are a bad parent.
http://www.popularculturegaming.com -- my blog about the culture of videogame players
Better for the kid to learn now that "free speech" is (and always has been) a crock of shit in the U.S
I'd like to see some case law support for your ludicrous assertion. Comparatively speaking, the US has the strongest free speech protections on the planet. That doesn't mean no restrictions, as no right is absolute. But your hysterical response just does not jive with the facts.
Slashdot "libertarians": Small government for me, big government for those I disagree with. -1, I disagree with you
Yes the student is a stupid teenager venting on the internet. Yes, if she had done this in a school hallway she would deserve and receive the suspension.
The problem with this court case is that it happened outside of school, outside of the principle's jurisdiction. I can't imagine what would happen if my high school VP were to have heard the things I said about him outside of school and this sort of mentality were applied.
Now, because the student made this claim in a public forum and this was obviously a baseless personal attack (not parody) it should have been handled as libel and not a school issue. Free speech and criticism off of school grounds needs to be protected, and this case blurs that line. Libel doesn't deserve to be protected and that's why it should've been a civil case.
Contrary to submitter's logic, this case wasn't decided the way it was to protect someone's feelings.
In fact, all the cases cited in opposition to Judge Munley's decision make it clear that to maintain order in a school environment, the students just can't say "fuck you" to a teacher or principal. The on-campus/off-campus distinction might have made clear sense in Tinker (1969), but now that every student has Internet access and a Myspace page makes it a lot more possible to create a serious disruption off-campus that spills into the school.
I'm big on free speech, but I also know that kids need boundaries and guidance as to how to behave in civilization. Left to their own devices, it would be Lord of the Flies.
I went to parochial school and knew I'd be thrown out if I did something off campus that disrespected the school or administrators. That students should be able to embarrass, harass, or defame school officials merely because taxpayers fund their school seems curious. The idea that the Constitution even applies to this taxpayer-funded service should be questioned. So my tax dollars should fund a very expensive service for some ungrateful, disobedient little shit who wants to disrespect said service (and taxpayer)?
Public education should be a privilege, not a right. Then maybe more so-called "students" would appreciate it, and student success rates would be better.
Just another reason my kids will go to private school.
Slashdot "libertarians": Small government for me, big government for those I disagree with. -1, I disagree with you
I'm not going to advocate the student's suspension, because I don't know enough about the details. But I can say that the student asked for what they got. My ensuing rant isn't about the law. It's about right and wrong.
Free speech in the US allows for a lot of abusive speech. It has to in order allow all forms of more constructive speech. But what people have to realize is that freedoms don't just come with responsibilities. They ARE responsibilities. As a citizen, it is your responsibility to both ensure that free speech is allowed AND to use that right responsibly.
Part of what students in school should learn is constructive civil behavior. Calling the principal a paedophile was both uncivil and unconstructive. In saying what the student said, they had a point to make. Unfortunately, by using irresponsible means, the student got into trouble instead. Their point was not made.
The primary purpose of free speech is to allow any idea to be conveyed publicly. It's about CONTENT. While free speech laws do not and should not dictate the FORM of the speech, it is one's personal responsibilty to try to convey the content in a form that is clear and effective.
"Principal X is a dick" is vague and unhelpful. Why is principal X a dick? I just think you're being a jackass by saying it. You probably got into trouble for something you did wrong, and you're sore about it. Maybe that's not true, but your petulant attitude is consistent with my inference.
On the other hand, this would be productive to say (if true): "Principal X should be fired. He has a history of placing authoritarianism above all else, disregarding circumstances. For instance, there's a rule against running in the halls. My friend was running in the hall the other day because he was going to have diarrhea if he didn't make it to the toilet. On his way, he ran past principal X who grapped him by the arm and spent 5 minutes yelling at him about it. Meanwhile, he shit his pants, which was really embarrassing."
Notice that I have no qualms about the use of certain words like "shit" or whatever. It's not the words we should care about. It's the meaning and intent. If the content is a message, or it has artistic value, it should be encouraged. If the content and/or form are designed purely for the purpose of being offensive, the speaker is being irresponsible. I'm not saying offensive speech should be outlawed. I'm saying that purely offensive speech is WRONG.
As for the student's punishment, I think it's appropriate. It's one thing to bad-mouth your teachers at home or at a party. It's entirely another to publish lies about them in a recorded medium. This is libel pure and simple.
As for the rap song with the death threat, that should be taken seriously too. I don't give a damn about rap artist posturing. Murder is wrong, and so is threatening murder. Maybe a professional rap artist can get away with it. I think there's a case for considering it to be artistic and not a specific threat. But it's still iffy. Death threats, even when not specific, could be an indication of something more serious. All you can really do, of course, is be a careful listener.
For a teenager, one has to be even more careful. Brains aren't fully developed, social conventions are not fully learned. While I knew plenty of teenagers who could distinguish reality from fantasy, I knew far more who could not. Hell, I know far too many adults who can't either. Children are often held to higher standards and stricter rules than adults because they lack experience that tells them what the exceptions are. When my kid is 10 and says "fuck", I'm going to smack his mouth. When he's 20 and says it, I'm going to assume he's grown up enough to know when not to say it and that its use was to emphasize a point, not merely to be gratuitously offensive. That being said, I know 30-year-olds who haven't learned how to temper their language, and as a result, they're losers who can't hold a job at McDonalds.
Wh
You're right, school is not a democracy. What your teachers failed to tell you is that it's not a tyranny either: it's a government institution with a very specific goal. The employees are government employees, paid with your taxes.
This means that teachers and principals can't just do whatever they feel like when they come across something they don't like. This, to me, certainly crossed the line.
Those who can, do. Those who can't, sue.
Yes, 'free speech' is a right guaranteed by the Constitution here in the USA.
The lesser spoken follow-up to that is taking responsibility for what you say.
That's where libel, disorderly conduct and other things come into play. Yes, you can shout 'Fire!' in a crowded theater. That's your right to do so. However, you're responsible for whatever happens as a result of your saying that if it isn't true.
The fine line with libel is how things are stated. "In my opinion" in front of almost any statement will prevent it from being presented as a fact. Without that you're stating something that you expect others to believe as fact. Again, it's your right to say it but you also have to take on the responsibility of saying it.
Student rights are not even something I want to address except to say that unless they're emancipated adults they have no rights beyond what is expressly given to minors. Constitutional rights apply to emancipated adults. Period.