Liveblogging ELA - Where is Internet Speech?

The last presentation at ELA I attended was a quite interesting one. A couple of researchers from the University of Cincinnati presented on a study of school principal's perceptions toward off-campus speech. Their findings will hopefully be out in an article soon, but the general idea was that place of the creation of the speech was a significant predictor of a principal's disciplinary reaction to the speech. In effect, if a student created the speech at home, principals were less likely to regulate whereas if the speech was created at school, the school was significantly more likely to regulate. Watch for an article soon that gives much greater detail on their findings. 

But, here is the thing. The "place" of the speech's creation actually matters very little in the legal analysis. The legal analysis is pretty much wholly concerned about the effects of the speech. Tinker, in particular, set up a student speech analysis regime that is wholly concerned about the effects of speech on the schools. This is why we are concerned with whether the speech's outcome will have a material and substantial disruption on the school environment. Now, this comes with some cavets. The Bethel and Hazelwood analysis IS concerned with the creation of the speech (not lewd, vulgar or offensive and not school sponsored, respectively). This can play into the off-campus speech analysis, but not nearly as much as the Tinker issues and I highly doubt that is what is accounting for the researcher's findings. 

This "place" issue is important because of the geographical effects of the Internet. When it comes to published speech, the Internet has gotten rid of geography in a lot of ways. Internet speech is neither here nor there, it is both. This blog post, for instance, is in San Antonio's airport right now where I am writing it, but it is just as much in Lexington or Cincinnati or your school or my school or a student's home. It is in all those places as soon as the server request transfers the data through the Internet to a computer (and with RSSing, that happens a lot without someone even intentionally sending a request). Thus, the effects of the speech (what Tinker is concerned with) can also be in all those places. So, using place as a determinate factor really doesn't make sense. The "nexus" test and the "disruption" test (if those are 2 separate things) only cares about the effects - not the creation - and since those are the two most important tests for off-campus speech, the researchers findings really are instructive that principals are not understanding the fundamental analysis at play here and are likely making mistakes in disciplining student speech. 

Anyway, it was excellent research and I look forward to reading the article on it.

Comments

[Joel]

I can understand where you are going with this, but have to admit this gets a little difficult to unravel in a school situation.

Here is a real-life situation which was difficult.

A student had created a profile page of a principal with his picture and personal information. The student also put false information in the profile about sexual preferences and very strong language about minorities.

The student did all of this from home.

However, as you said, the geography of this goes away on the receiving end.

Our difficulty was in determining how to address the situation. Had he actually used one of our school computers to do this, he would have been in violation of board policy for posting false information. We would likely have used that document as a basis for discussion. But, he never misused our equipment.

Since this happened at home - and it really did not cause a substantial and material disruption (unless you count the very angry principal), it was difficult to determine what we could do.

Fortunately, the parents were cooperative. It would likely have become a personal matter of individual -vs- individual had cooperation not occurred. (my non-legal background not withstanding, I think something could arise from a potential of defamation of character...?)

In the end, where the speech originated had an impact. Do you see this playing out differently?

[Justin B.]

Thanks for the post Joel. See, I think you make my point about geography not mattering all that much. The geography of the false information policy mattered, but as far as regulation of speech, it doesn't really matter all that much.

On this case, I would have probably disciplined under Bethel v. Fraser, which says that student speech that is lewd, vulgar or plainly offensive can be regulated. That element of the student speech analysis does not go away just because it is an off-campus issue. A nexus + lewd, vulgar or plainly offensive is enough. The racial language and sexuality stuff probably was enough for that standard. Alternatively, I would also have probably disciplined under disruption since if that false information got out about the principal, I think the courts would have backed you. But, it is good to hear that you dealt with it cooperatively with the parents. That is always the best solution.

Also, an option I wouldn't recommend, but that could be used is for the principal to sue the student personally for defamation (slander in this case). I have seen that before where school officials sue students personally in situations like these.

Great example and question Joel. Thanks.