Posts Tagged ‘First Amendment’
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?)
The question frequently asked by frustrated parents is “but isn’t this texting ‘hate speech’ ”? I put that question to a Constitutional lawyer , hoping to get a concise, if overly simplified answer, and was not disappointed. My own lay understanding of hate speech was roughly what any site on the internet will tell you―‘Speech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.’ What I came to understand over lunch is that there is no clear “Law” defining this speech―-just as, it was explained to me, there is no law against pornography. There are obscenity laws, and there are hate crime laws. But attempts to stuff much of the behavior, images and/or speech that challenges social norms under these laws will simply not hold up in court―as that content is precisely what these laws aim to protect.
http://lawreview.vermontlaw.edu/articles/14%20Beckstrom%20Book%202,%20Vol.%2033.pdf
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/hatespeech.htm
Upshot: Best course of action seems to be to be sure your school writes clear code of conduct policy about cyberbullying―including consequences for incidents posted after school hours, and be sure that policy is plastered everywhere , hopefully becoming enough of a deterrent. If the legality of the conduct code itself is challenged, know that every Supreme Court decision since the seminal Tinker v. Des Moines Independent Community School District, 393 (1969) has reaffirmed and expanded the kinds of speech schools are allowed to regulate (including Bethel School District No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier, and most recently, Morse v. Frederick). So, for now, this appears to be the best course of action.
What I’m curious to learn is, if addressing this issue in our schools was up to you, how would you handle it―and simultaneously protect ‘freedom of speech’?