Posts Tagged ‘TInker v Des Moines’
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’?