Suspended Speech

The difference between silent political protest and libelous gossip is obvious, but should they be equally protected?

The question being raised is whether or not the lower court of Pennsylvania was correct in their ruling regarding the First Amendment rights of a middle school student who was suspended for 10 days for creating a fake Myspace profile for her principle that contained false derogatory statements. The lower court ruled that J.S.'s (the student involved in the suit) First Amendment rights had not been violated and that the principle had been justified in his punishment of the student. The court supported this ruling by applying Bethel v. Fraser.

I am in agreeance with the lower court's ruling that the student's First Amendment rights were not violated, despite the fact that the site was created off of school grounds. I will support my view doctrinally and philosophically.

Doctrinally, I will examine Tinker v. Des Moines and Bethel v. Fraser cases and how they apply to this particular case. Both cases establish laws and parameters regarding the free speech rights of students. I will argue that J.S.'s speech did not fall into the parameters set forth by the ruling in Tinker v. Des Moines and that because of the nature of her speech, the case Bethel v. Fraser was properly applied by the lower court.

First Amendment philosopher, Zechariah Chafee, argued that not all speech should be protected such as speech that is “profane, indecent, or defamatory.” Chafee argued that speech of this nature has little social value and rarely does anything to encourage or stimulate the search for truth. He also argued that speech should be a vehicle in the “training of the young.” J.S.'s speech was derogatory and libelous. It did not make a political statement and was of little value, furthermore, it was a disruption to learning.

In the landmark case of Tinker v. Des Moines, the Supreme Court Justice Fortas stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” thereby establishing that students do indeed have First Amendment rights. But he later stated that,

“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.”

J.S. argued that Tinker v. Des Moines should be applied to her case and even though the lower court found that Bethel v. Fraser be a more appropriate and accurate case to apply to the ruling, J.S.'s speech, I believe, did not fall into the parameters set forth by Tinker v. Des Moines.

The profile made by J.S. and her friend was initially shown to 20 students, the site was accessed at school, and then she printed and distributed copies of the profile at school. She wanted students to know about it. The principle learned about the site from a teacher which proves that a disruption in learning had most likely occurred. The extent of the disruption is not cited in the article and one must establish the difference between school gossip, which is inevitable, and speech with serious ramifications. Despite this, the evidence above does establish the foundation for a disruption in learning that may in fact have occurred.

But it is the nature of the content of the page that would have inevitably caused a disruption and invaded the rights of the subject, the principle. In the fabricated profile she made statements that the principle was a pedophile and was interested in pornography. These statements not only disrupt learning but could erode the reputation and the level of trust students, parents, and teachers put into a principle of a school. False statements and accusations like these are like a wildfire, especially in a setting where minors are involved.

Because of the nature of the statements made by J.S., the Pennsylvania lower court applied Bethel v. Fraser. U.S. District Court Judge James M. Munley stated,

”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.”

The Bethel v. Fraser case established that school officials have the right to punish “offensively lewd and indecent speech,” therefore justifying the principle's decision to suspend J.S.

Zechariah Chafee would most likely agree with this decision. Chafee argued that speech should be protected because it is a means of attaining truth, furthermore, he did not extend this protection to “profane, indecent, or defamatory” speech because of its lack of social value. J.S.'s speech was untrue, defamatory, and did not promote “the training of the young.” It was vengeful gossip that she intended to spread for whatever reason.

Although I do believe that students have First Amendment rights, I also believe that a school is for learning and that a certain atmosphere must be established and maintained for this to occur. Therefore, I believe that schools, school boards, and districts have the right to punish some speech that interferes with this atmosphere, but should also recognize that free speech is a contributing factor to learning. For this I believe that the lower court of Pennsylvania was accurate in their ruling in the case of J.S. v. Pennsylvania.