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Wild West: This Time Student Speech was Protected

Here on the wild frontier of the First Amendment, lawyers and judges don't always know what will happen when a student pulls the free speech trigger. As discussed in a prior post on FindLaw's Decided Blog, even courts in the same Circuit can't come to a predictable conclusion. This time it is Florida, where a federal magistrate has ruled that a student's rant against a teacher on Facebook was protected speech and her suspension for it violated her first amendment rights.

As previously discussed, two panels of the 3rd Circuit in Pennsylvania came to opposing opinions after two different students posted MySpace parodies of their principals, one court finding the posting was protected speech and the other saying it was not. The Florida case had slightly different facts, but the court's decision making process was essentially the same.

According to a report by The Miami Herald, Florida student Katie Evans posted a 2007 rant on Facebook about how terrible her teacher was. Refreshingly, there were no sexual allegations in this posting, just griping. Facing opposition from other students, she took the statements down a few days later. After the principal found out about the page, Evans was taken out of her AP classes and suspended for three days. Evans sued, asking for the punishment to be cleared from her school file and for her attorney's fees to be reimbursed.

Since this is not merely a question of free speech, but of student speech, Federal Magistrate Judge Barry Garber asked the same questions as did the courts in the 3rd Circuit cases in Pennsylvania: did this speech take place on or off campus, and did it disrupt the school environment? It is interesting to note that courts come to differing opinion as to whether "speech" written on an off campus computer constitutes student speech that can reasonably be controlled or punished by school authorities.

This time, Judge Garber found the speech to have taken place off campus. The next step, the school disruption question, was answered in the negative as the speech was not lewd, vulgar or threatening. Evans will now be allowed to amend her complaint to continue to try to have her suspension expunged from her promising record as an honors student.

According to The Herald, Matthew D. Bavaro, who filed the suit with the American Civil Liberties Union on Evans' behalf, said the case helps clarify when schools can punish students for speech that doesn't take place at school. "These days, things are done on the Internet .... So the law needs to adapt and we need precedent on how courts are going to apply First Amendment principles for off-campus speech."

Although several issues still need resolution in this case, look out world. Katie Evans is now a Journalism major at the University of Florida. No doubt there will be a lot more free speech coming your way. 

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