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Does Student Free Speech Apply to Online Comments?

Two recent court rulings about the right of students to exercise free speech have left me baffled. I'm referring to the decisions initially handed down in February in the Third Circuit Court of Appeals in Philadelphia but now up for reconsideration.

One case involved a middle school student and the other a high school student. Both dealt with vulgar remarks they posted online from their homes about their respective principals. Yet despite the similarities—at least to my thinking—one panel of the federal court decided in favor of the high school student, and the other panel ruled in favor of the middle school principal. The full court reheard both cases in June, but it has not yet made a final ruling.

I'm flummoxed because I thought the issue of student free speech had finally been settled by the U.S. Supreme Court in 1969 in Tinker v. Des Moines Independent Community School District. In that case, the high court overturned the suspension of students who had defied school officials by wearing black armbands to protest the Vietnam War. Justice Abe Fortas wrote that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Although two later cases limited Tinker's scope, the case is still widely considered the landmark ruling.

But the issue has become complicated in the digital age because the law is murky in this area. The closest that state legislatures have come to clarifying matters is to pass laws giving school administrators power over cyberbullying, although states differ in the specifics. The New York Times dealt with the ambiguities in a front-page story on June 27 ("Online Bullies Pull Schools Into the Fray"). The two recent cases, however, did not fall under this broad umbrella. Instead, they involved the clear intent by students to smear the reputation of their principals by remarks they made when they were off campus.

Whether this behavior meets the standard set by Justice Fortas when he wrote that school administrators could limit student speech when it would "substantially interfere with the work of the school or impinge upon the rights of other students" is unclear. The U.S. Supreme Court needs to issue guidelines, or students will be encouraged to engage in libel and slander under the guise of freedom of speech. This is a lesson in irresponsibility that is bad for students and the country.

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The opinions expressed in Walt Gardner's Reality Check are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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