Bawdy pictures and nasty jabs at classmates might have some students ROTFL, text speech for Rolling On The Floor Laughing.
But both educators and free speech advocates are looking for ways to encourage responsible use of social media without compromising individuals’ First Amendment rights.
At Capital School District in Dover, the Board of Education recently tabled a measure that would have prohibited students from making negative comments on the Internet against groups or individuals based on race, religion, gender, disability, sexual orientation or country of origin.
Phillip Martino Jr., president of the district board of education, said the board decided to review the policy after receiving a letter from the American Civil Liberties Union (ACLU) of Delaware that said the measure would deny students their constitutional right to free speech.
He said the policy evolved from parental concerns regarding cyberbullying.
“We still believe that we need to do something to protect students, so there will be a policy,” he said. “But we expect that it will have some revisions to ensure that no one’s rights are being violated.”
The original proposal would apply to students during and after school, on and off school property. It also would pertain to electronics owned by students and their families, as well as devices owned by the district.
In Dover, city council dropped a similar proposal directed at employees after being contacted by the ACLU.
William P. McGlumphy, a second district councilman, said there already are government policies in place that prohibit employees from using social media for personal purposes during working hours.
But when workers are off the clock, the council agreed their time should be their own.
“We felt the measure was too far reaching,” McGlumphy said. “It extended into the personal lives of our employees outside the work day—and we didn’t want to be Big Brother.”
In a letter to Michael Thomas, Capital superintendent, the ACLU asked the district not to enact a policy, citing the Dover decision, as well as a similar decision in Kent County’s Levy Court.
“Like any other government agency, the Capital School District is required to comply with the U.S. Constitution at all times,” wrote Richard Morse, the ACLU’s legal director. “This means it may not deprive students of First Amendment Rights, even when it has a laudatory goal, such as preventing students from using the internet for distasteful or repulsive speech that may hurt themselves and others.”
Kathleen MacRae, the ACLU’s executive director, says the school district’s proposal also included a number of positive points, including advice on dealing with cyberbullies, privacy concerns and treating others with kindness.
The policy encourages students to “be thoughtful, reflective, informed, accurate, and respectful of others in your communications,” as well as to promptly own up to mistakes they might have made in online postings.
“We understand that negative incidences, including cyberbullying, have helped to trigger these efforts,” she said. “Our concern was that they went too far and as a result students would have been denied their right to free speech.”
Ruth Carter, whose studies at the Sandra Day O’Connor College of Law at Arizona State University focused on intellectual property and Internet law, blogs frequently about such topics as cyberbullying and legal issues involving social media.
She says kids need to be educated early on the far-reaching implications of online discourse.
“Children should be taught at a young age that there is a permanent record every time they say anything on social media,” she said. “Their posts on social media are not person-to-person communications, it’s a public communication. They should think that every post is like a billboard that anyone can read.”
Carter believes that curbs on social media ultimately have a withering effect on healthy conversations about controversial subjects.
“Bullying and discrimination is not OK but a respectful discourse should always be encouraged,” she says. “Children should be taught that they can have impassioned discussions where everyone’s beliefs are respected.”
Courts are divided on the issue, largely considered a legal frontier.
In Indiana, two high school sophomores took sexually suggestive photos of themselves at a slumber party and posted them on MySpace. The girls were suspended from volleyball, cheerleading and show choir and ordered to undergo counseling.
They sued, saying their right to free speech had been violated. The court agreed.
In West Virginia, the court upheld a school’s suspension of a student who created a webpage that ridiculed another student by using photoshop to add red dots to the girl’s picture, saying she had herpes and inviting other students to comment. Kara Kowalski, the student who created the page, also was booted from the cheerleading squad.
She appealed, saying the ruling violated her free speech and that she had created the page off-campus. An appeals court ruled in favor of the school, saying administrators can take action when speech is mean-spirited, hateful and has a sufficient connection with the school.
In Pennsylvania, Justin Layshock, a 17-year-old senior, was suspended for 10 days and dropped from the gifted program after he used his grandmother’s computer to create a phony MySpace page for the school principal, quoting the principal as saying he was “a big steroid freak” who drank from a beer keg behind his desk.
The teen’s suspension was expunged from the record after the court ruled the school could not punish the boy for actions that took place off school property.
Tom Jacobs, a retired juvenile judge and the creator of Ask the Judge, believes schools have the right to establish codes of conduct for students. He recently wrote an article for the Internet Safety Project asking if the U.S. Supreme Court would be the ultimate judge on student free speech in the digital realm.
“An on-campus incident can be dealt with through a Code of Conduct that includes an ‘acceptable use policy’ of all things digital,” he wrote. “The tougher issue is whether a school can suspend or expel a student who composes a mean-spirited post or fake profile of a teacher or principal, for example, on their own computer away from school.”
Jacobs, who is based in Flagstaff, Ariz., has interviewed teens on Internet use in a number of states, including Delaware. He said schools and parents should both work to ensure that kids realize there are consequences to online posts.
“Every teenager I’ve interviewed over the past three years about bullying and cyberbullying told me they wouldn’t have sent their message had they known what would happen as a result,” he said.
At Capital, school district lawyers currently are reviewing the policy, Martino says. A code of conduct already is in place for employees, which requires them to “maintain professionalism in all online activities.”
Martino expects a revised measure for students will be presented within the next few months.
“This is not a dead issue,” he said, noting the policy will focus on guidance and education for online communication, rather than disciplinary actions.
“What students say about people online can be very hurtful and can stick around literally forever,” he said. “It’s our goal to come up with a policy that is both enforceable and helpful.”
