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Bullying, Off-Campus Student Speech and the First Amendment

by JULIE HILDEN

This past summer, the U.S. Court of Appeals for the Fourth Circuit ruled against student Kara Kowalski on her First Amendment claim.  The case arose after Kowalski was suspended by her high school based on scurrilous remarks she had made about another student on a MySpace discussion page, while she was in her own home, on her home computer.

Now, Kowalski is seeking Supreme Court review.

It seems very likely that the Supreme Court will soon grant review in a student speech case that raises the question whether a public middle school or high school can punish students for their online postings, even when they have posted the material from their computers at home, outside of school hours.  But the Court probably shouldn’t take this particular case—for reasons I’ll explain below.

I’ve written about student speech  twice before—here and here.  I believe the issue is a very significant one, in part because high-school speech controversies may be students’ practical introduction to the First Amendment and to constitutional law generally.

If a court rules against a student in a First Amendment case, it may make her and her peers cynical about all the Constitution’s promises—or else determined to fight on even harder.  Conversely, if a court rules in a student’s favor, she may become a First Amendment advocate—either formally or informally—for the rest of her life.

And even those students who aren’t directly involved in a First Amendment case may still suffer from having their off-campus speech chilled by unreasonable school speech codes, if courts take an anti-speech position.

Across the country, schools’ attorneys may carefully watch the case law on this issue, to figure out exactly how far speech codes can go.  And everywhere, students’ lives, and their views of the First Amendment, may be influenced.

Kowalski’s Case: The Facts

As with many First Amendment cases, the facts of Kowalski’s case aren’t pretty.  First Amendment plaintiffs are typically a rogues’ gallery, and even courts that rule in their favor usually give their blessing to the principle, not the person.  And surely, no one would defend what Kowalski said here—only her right to say it.

The MySpace webpage Kowalski created was called “S.A.S.H,” which, she testified in her deposition, stood for “Students Against Sluts Herpes.”  However, a classmate who accessed the site said that “S.A.S.H” actually stood for “Students Against Shay’s Herpes”—with “Shay” referring to a fellow student who was discussed at length on the webpage.

At Kowalski’s invitation, about two dozen students from her high school joined the MySpace group associated with the webpage and thus accessed the webpage.  Further discussion on the webpage then seemed to confirm that “S.A.S.H.,” and thus the herpes claim, in fact referred to the student known as Shay N., and not to “Sluts.” (Last names of juveniles are typically not used in judicial opinions in order to protect their privacy.)  Shay N. was also called a “slut” on the webpage.

When Shay N.’s parents learned about the webpage, they filed a harassment complaint on their daughter’s behalf with the school.  Kowalski was then suspended for violating the school’s rule against creating a “hate website” and its policy against harassment, bullying, and intimidation.

Kowalski’s suspension included a five-day ban on attending school; a ninety-day ban on attending school events in which she was not a direct participant; being ousted from the cheerleading team; and being banned from crowning the next “Queen of Charm.”

Kowalski had been last year’s Queen of Charm and thus had the responsibility of crowning the new one—giving the whole case a distinct “Mean Girls” feel of popular-girls-versus-outsiders.

But even mean girls have feelings:  Kowalski says that her suspension, and the isolation she felt as a result, caused her to start taking prescription antidepressants.

The Fourth Circuit’s Decision

Based on the Fourth Circuit’s opinion, it seems that there was no real argument as to whether the school’s policy was, in fact, violated here, or whether Kowalski had notice of it.  (Interested readers may want to consult pages 6 and 7 of the Fourth Circuit’s opinion for details about the policy.)

Thus, the core question the Fourth Circuit addressed was whether the policy could, consistent with the First Amendment, reach outside the school and into Kowalski’s home.

The Fourth Circuit held that it could.  More specifically, it held that Kowalski’s suspension was constitutional because she  “used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which ‘materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.’”

(Here, the internal quotation marks frame the longstanding student speech test set forth in the Supreme Court’s 1969 decision in Tinker v. Des Moines Indep. Community Sch. Dist.)

In this case, foreseeability was especially important to the Fourth Circuit. The court, invoking Tinker, pointed out (1) that it was foreseeable that the effects of the off-campus conduct at issue (the creation and use of the MySpace page) would reach the school; and (2) that it was foreseeable that the off-campus conduct would create a substantial disruption at the school.

Surely, these two foreseeability factors ought to be present for students’ off-campus speech to be punished.  But if they are present, is that enough?  The Fourth Circuit thought so, in this case, but other cases are bound to be much more difficult.

Pragmatically, putting legal tests aside, I think the court saw this as an easy case because (1) the speech at issue was so clearly and specifically targeted, focusing on poor Shay N. and thus adding a bullying element to the case; (2) the webpage seems to have been accessed, by invitation, exclusively or almost exclusively by fellow students at the same school, not Internet users generally; (3) the claim about Shay N. was heinous and involved facts that, if true, were highly private, and if false, were highly defamatory; and (4) the speech at issue was not in any way informative or useful; to the contrary, the court went so far as to call it “mean-spirited and hateful.”

Why This May Not Be the Right Student Speech Case for the Supreme Court to Take

Having covered the case’s basic facts and the Fourth Circuit’s core holding, let’s now move on to the question whether this is a case in which the U.S. Supreme Court ought to grant review.

I’ll argue that it probably isn’t, for two reasons.  Each reason points to a complication in the case.  I’d like to see the High Court start with a simpler student speech case, and proceed on from there to more complicated scenarios.

The first complication is that there are pre-existing, longstanding, and well-defined legal remedies for the harms caused by the speech at issue.

If Shay N. does not, in fact, have herpes, then she could likely sue Kowalski for defamation and intentional infliction of emotional distress, based on Kowalski’s falsehood.

And if she does have herpes, she could likely sue Kowalski for intentional infliction of emotional distress or public disclosure of private facts in revealing that fact to her schoolmates.

Although the standards for intentional infliction of emotional distress are famously high, these facts might well meet them.  It’s hard to think of anything more distressing to a high school student than having her whole school know that she has a socially-transmitted disease.

With these remedies already at hand, it’s not clear if there is a need for the High Court to take this kind of student speech case.  Moreover, the very availability of those remedies might well alter the Court’s approach to the case.  Again, my sense is that simpler is better.  A simple student speech case that does not carry with it potential tort liability would be preferable for the Court to take.

By comparison, the seminal Tinker case had a simple scenario:  A peaceful Vietnam War protest accomplished by the wearing of black armbands was upheld.

And, the test Tinker  created in 1969 has proved itself quite workable for decades—indeed, until just recently, with the advent of social media.

A Mixture of Bullying and Speech

A second complication arises from the fact that this is a bullying case.  (The Fourth Circuit panel clearly saw it as such—even citing a “Stop Bullying” website, and pointing out that school administrators are “becoming increasingly alarmed by the phenomenon [of bullying].”)

It’s not that I don’t think bullying is important; I think it’s tremendously important.  But I also think that, if the first First Amendment case that the Court takes regarding off-campus, online student speech is also a bullying case, then the issues in the case may be distorted—and so may First Amendment law.

For one thing, the worth of student speech generally may seem diminished by the heinous character of the student speech at issue in a bullying case.

No wonder, then, that the unanimous Fourth Circuit panel found it easy to rule against Kowalski without setting forth any hard-and-fast rules.  Indeed, the panel claimed that “we need not fully define” the “limit” to a school’s ability to punish student speech that originates “outside the schoolhouse gate.”  It was enough for the panel that Kowalski’s MySpace page, in its eyes, clearly fell within that limit.

A closer case, where the student’s speech was less cruel and less targeted, would surely have pushed the Fourth Circuit to do a better job of defining the legal limit, instead of intentionally punting on the question.

And similarly, a closer case than Kowalski’s might also produce a better, more nuanced ruling from the High Court than a dramatic bullying-related case would.

The Kind of Student Speech Case That Might Be Right for the Court to Take Would Be a Simple One

A better case for the Supreme Court to take—at least from the point of view of First Amendment advocates—might be something like one I wrote about earlier where students, during a sleepover at a private home, took lascivious (but clothed) photos of themselves, and posted the photos on social-networking sites for friends to see.

There, students sought to express themselves off campus, and the school cracked down on them for doing so.  There was no bullying. There was no victim.  No civil or criminal laws seem to have been broken.  And that kind of simpler, less explosive fact scenario might therefore lead to a better, clearer decision from the High Court.

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