Supreme Court’s online speech no-decision counts as a “win” for student First Amendment rights

The announcement that the Supreme Court will not hear any case this term involving the First Amendment rights of students punished for off-campus speech on social networking sites left one thing firmly established: That the law is not firmly established.

That is not altogether a bad place to be.

Considering the alternative.

In 2007, the Supreme Court allowed itself to be swayed by sympathy for a put-upon high school principal in Juneau, Alaska, who made the ill-advised decision to snatch away a humorous banner that one of her students was waving at an off-campus event. To spare Principal Deborah Morse from having to pay money damages to a smart-aleck kid, the justices tore up the law of the First Amendment — and came up with Morse v. Frederick, an abomination of results-oriented judicial expediency over principle. The Court’s majority simply decided who should win — and then rewrote the Constitution to reach the desired result.

If the Court disliked Joseph Frederick and his “Bong Hits 4 Jesus” banner enough to fabricate an unprecedented new exception to the First Amendment, just imagine how warmly John Roberts & Company would have greeted Kara Kowalski.

Kowalski is the West Virginia high school senior who started a MySpace page with a mysterious name (“SASH”), which rapidly became a vehicle for hateful personal attacks on a particular classmate, full name and photo included. The kindest interpretation of the facts — by Kowalski’s own testimony — is that the group was meant to be known as “Students Against Sluts’ Herpes.”

Compared to that, “Bong Hits” is Shakespeare.

Kowalski’s case, Kowalski v. Berkeley County Schools, was one of three raising comparable First Amendment issues that the Court declined to accept. In that case, the 4th U.S. Circuit Court of Appeals unanimously held that Kowalski’s speech was not constitutionally protected, because the distress inflicted on the targeted student was disruptive of school business.

In the others, J.S. v. Blue Mountain School District and Layshock v. Hermitage School District, the neighboring 3rd U.S. Circuit Court of Appeals reached a different conclusion. The judges found that in neither case — both involving students who ridiculed their principals with crude jokes on phony MySpace profile pages — could the schools constitutionally punish the students’ off-campus speech.

The circuit court was almost evenly split on the legal rationale, but there was strong sentiment that off-campus speech cannot be legally equated with on-campus speech just because it is viewable anywhere.

That the Court has left lawyers, schools and students with no clear guidance — the same behavior that is constitutionally protected in Delaware today may be unprotected in Maryland — may understandably provoke frustration. But sometimes expedience is no virtue.

America is in the grips of media-hyped hysteria over “sexting,” “cyberbullying” and other acts of online stupidity, and yet little objective research confirms whether these phenomena are as widespread as the headlines — and the make-a-buck charlatans trying to sell “prevention courses” to schools — would suggest. Writing policy for a generation — or a century — requires a reliable evidentiary foundation that doesn’t yet exist.

The slate on which the courts are writing is moving — at warp speed. The social network on which Justin Layshock and Jill Snyder and Kara Kowalski created their handiwork, MySpace, was once an instantaneous platform for reaching a school-wide audience. Now, it barely exists. The notion that speech on a MySpace page could permanently damage a professional educator’s career seemed plausible when the Layshock case first went to court in 2006. Today, it’s inconceivable. Who’d see it?

Appeals courts — especially the Supreme Court — do not write individually personalized rulings. They paint with broad brush strokes, so as to give guidance for the many thousands of analogous cases that follow.

A ruling in favor of Justin Layshock’s principal would not say: “Schools may punish fake MySpace profiles in which students falsely claim that their principals ‘smoke big blunts’ and are ‘big steroid freaks.'”

More likely, it would say something like this: “Schools may punish off-campus speech that foreseeably will reach school and cause a disruptive impact.”

Now, change the facts of Justin Layshock’s case. Instead of going on MySpace to make fun of his principal, Justin is going on the 11 o’clock evening news to give an interview exposing that his principal helped change students’ answers on standardized tests.

What has Justin Layshock just done? In most people’s view, a public service.

In the principal’s view, he has engaged in “off-campus speech that foreseeably will reach school and cause a disruptive impact.” Speech that, if school administrator lobbyists get their way, will be viewed by the law not as a public service but as a punishable disciplinary offense.

In last term’s Snyder v. Phelps, the Court put aside its revulsion over the message of the speakers — members of a tiny Kansas religious sect who stage virulently anti-gay demonstrations outside the funerals of dead war heroes — and resoundingly reaffirmed that the First Amendment keeps the government from selectively protecting or punishing speakers based on distaste for their messages:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Is it “right” that Justin Layshock and Jill Snyder go unpunished by their schools? Maybe not. But it is important.