The student, who posted the tweets away from school grounds, is at risk for suspension or expulsion under the state's bullying law.
The federal judge wrote that the student, who was threatened with expulsion over a sarcastic two-word tweet, had a plausible argument that his school district violated his First and 14th Amendment rights.
Can derogatory remarks about a teacher be both constitutionally protected speech and also punishable as harassment?A Wisconsin appeals court appears to believe so.The Wisconsin Supreme Court is being asked to take up the case of "Kaleb K.," a 15-year-old student from Stevens Point, Wisc., who was arrested after posting a homemade rap on YouTube filled with profane, degrading language about his Spanish teacher.In September 2012, a juvenile-court judge declared Kaleb delinquent on the grounds of violating state criminal statutes against disorderly conduct and unlawful use of a computer communications system.In a ruling last November, the state Court of Appeals threw out the disorderly conduct charge, finding that Kaleb's lyrics, though distasteful, were not threatening, obscene or otherwise outside the boundaries of the First Amendment.But the court then went on to uphold the conviction under the state's computer-harassment law, which makes it a misdemeanor if a speaker "sends a message to [a] person on an electronic mail or other computerized communication system" that contains lewd or profane language "with the intent to harass, annoy, or offend."It's possible to harass someone even with a constitutionally protected message if the speech is delivered in an especially harassing manner.
A middle-school student uses Twitter to chat with friends about her anger over losing her boyfriend to another girl.
Two events serendipitously collided today in the world of free speech:(1) The First Amendment advocacy organization, 1forAll, launched its Twitter campaign, #freetotweet, offering a $5,000 scholarship prize rewarding young people for creative and inspiring posts about free expression.(2) In North Carolina, it became less free for young people to tweet than ever before.The ability to use the Web to speak without fear of government reprisal is, in many corners of America, a distant and fading promise.There is no freedom to tweet in Indiana, where a high school senior was expelled -- expelled! -- for a junior-grade George Carlin joke on his personal Twitter account that riffed on the versatility of profanity.There is no freedom to tweet in Minnesota, where -- thanks to the University of Minnesota's recent victory in a state Supreme Court case -- you can be kicked out of college for making jokes online that, in the college's view, indicate unfitness for your chosen profession.There is no freedom to tweet in Illinois, where at least 10 students were suspended for involvement in an off-campus Twitter post calling a teacher sexy -- one for writing the post, others for "retweeting" it, and others for protesting the original discipline.
A bill awaiting the governor's approval in New Jersey would make it illegal for colleges and universities to require students or applicants' social media user names or passwords.The bill prohibits both private and public colleges or universities from asking for social media passwords or usernames.
The judicial ruling that would have changed everything for Amanda Tatro came just five months too late.Tatro, 31, was found dead in her apartment June 26, less than a week after the Minnesota Supreme Court threw out her First Amendment challenge to disciplinary sanctions imposed for some misunderstood jokes she posted on Facebook.Her college, the University of Minnesota, insisted that it could punish students' speech on social-networking pages -- even if the speech was created off campus on personal time -- and the Minnesota court agreed.The court fashioned a new legal standard that, for the first time, enables colleges (in Minnesota, at least) to discipline students for speech, even on personal time, that violates the "established professional conduct standards" of their chosen course of study.
It's increasingly difficult to convince courts to second-guess the judgment of schools in disciplining students for what they say -- even when the speech is created entirely off campus with no indication it was intended to be read at, or cause a disturbance at, the school.
When schools seek to punish students' off-campus behavior on blogs and social networking sites, their "penalty of choice" often is revoking students' eligibility for sports, honor societies and other extracurricular activities.That's because judges generally have given schools almost unlimited latitude to decide who may take part in after-school clubs that aren't considered central to the free public education to which every student is legally entitled.But a new ruling from a New Jersey appellate court torpedoes that distinction, and calls into question schools' widespread practice of withholding extracurricular activities to punish uncivil speech on the Web.In G.D.M.