Will the Supreme Court get to know Kara Kowalski?
Remember Kara Kowalski? Maybe not. 2005 was almost 7 years ago, and sadly, so many instances of cyberbullying like hers have been in the news since then. Kara, a cheerleader and reigning “Queen of Charm” at Musselman HS, created a MySpace page called S.A.S.H. and invited a number of her friends to check it out. In her deposition, Kara claimed that S.A.S.H. stood for Students Against Sluts Herpes, but her peers said otherwise. What it really stood for was Students Against Shay’s Herpes, Shay being a fellow student who was pictured on the page. Students posted photos, photoshopped them, left derogatory messages, and were, in general, demeaning and hateful. Kowalski , found guilty by the school officials of creating a ‘hate website’ which was against school anti-bullying policies, was suspended for 5 days, kicked off the cheerleading squad, and (ironically) prevented from crowning the next “Queen of Charm.”
Kowalski sued the school, claiming they violated her free speech and due process rights, and claiming the school had no authority to punish her, as she had created the website from her home.
She lost her case, and just this summer, lost her appeal to the U.S. Court of Appeals for the Fourth Circuit. This has not deterred her. She is now seeking Supreme Court Review—and, sooner rather than later, the Supreme Court is going to need to revisit the issue of student’s freedom of speech, which they ruled on in Tinker vs. Des Moines in 1969 (see my earlier blogs on cyberbullying).
Julie Hilden, writing for CounterPunch, is hoping she does not get it. Hilden discusses the complexities in the case, most notably the fact that legal remedies already exist to address Shay’s rights, a fact which fritters away her need for school authorities to intervene on her behalf, and the blurring of lines distinguishing a bullying case from a First Amendment case. While Hilden’s arguments are convincing, Kowalski’s behavior was heinous, and surely bullying behaviors which the courts will need to address will be complicated, and involve Freedom of Speech issues. AND, for precisely that reason, the court will need to sift the complex set of factors which are involved in this claim, and determine which to prioritize in setting legal precedent. That would seem to be half the battle in such cases—‘seem to be’ from the perspective of a concerned citizen, not a lawyer. Refresh your memory of the case Would you want your school to be able to sanction Kowalski if she created a MySpace page about your daughter, turning her into a social pariah at school? Would it be reasonable to claim such a page would interfere with her ability to learn? (Are my pandering, emotional appeals going to be left to dangle off a legal chessboard? Should they be?)
I am not familiar with the case but I don’t believe she should even be able to appeal! Does she really think that just because she created the MySpace account at home doesn’t mean the school can’t interfere? Of course they should and can! The victim’s life could be turned upside down! Free speech is FREE within reason….if it’s harming someone else then it’s a problem…..
Danielle and the original post make good points. There are two other student Internet free speech cases before the Supreme Court. Hopefully they’ll accept one of them to review and provide us with some direction in cyberspace. You’re correct – free speech is neither free nor absolute. There are limits for adults and teenagers. Learning those limits (threats, obscenity, defamation, etc.) will go far in fighting the bullying battle.
The cases I refer to are J.S. v. Bethlehem School District and Layshock v. Hermitage School District, both Pennsylvania cases. These involve similar facts: both students created fake profiles of their principals, one more sexualized than the other. Both received 10-day suspensions. Both filed lawsuits based on free speech and eventually won in June, 2011. Both cases are joined and pending a decision from the Supreme Court on whether their cases will be heard or not. It’s entirely up to the Supremes to accept or deny hearing an appeal. So, if the Court doesn’t get to know Hara, they may become familiar with Justin or J.S.