The Nine are not fans of social media, and they're not ready to consider arguments that students' free speech rights do not extend to cyberspace.
On Tuesday, the Supreme Court denied cert in three free speech rights challenges involving comments that students made about administrators or peers on MySpace.
The first two cases, both out of Pennsylvania, involved fake MySpace profiles that students created to mock their principals. In both cases, the students were punished for the social media profiles, even though they did not use school time or resources to create the profiles. The students sued their respective school districts, and the Third Circuit Court of Appeals ruled last year that the schools’ authority to police students did not extend to off-campus speech.
Unlike its northerly sister circuit, the Fourth Circuit Court of Appeals upheld a school punishment against a West Virginia high school student, who created and invited classmates to a questionable MySpace group. The student, Kara Kowalski, insists that the “S.A.S.H.” group was designed to bring awareness to sexually-transmitted diseases. Others claim that the group was created to insinuate that another student at the school had herpes.
The school punished Kowalski for creating the group after the allegedly-targeted student’s parents filed a harassment claim with the school. Kowalski received a 5-day, out-of-school suspension and a 90-day ban from most school events. She was barred from the cheerleading team for the rest of the year, and, unsurprisingly, was disqualified from her position as the school’s reigning “Queen of Charm.”
Considering the growing trend of social media bullying, we expect that schools will continue to create rules and exact penalties against students who create fake profiles targeting faculty and peers at their schools. Is it simply a matter of time before the Supreme Court intervenes with a definitive answer as to whether such behavior is protected under free speech rights?
3rd Circuit Issues Differing MySpace Student Speech Opinions (FindLaw’s Decided)