Ken Paulson: Sophomoric speech is free speech, too

  Some school memories are more golden than others.

  While we've all benefited from the good teachers and school administrators in our lives, it's hard to shake the memories of those who either didn't teach us very well or treated us badly.

  Students in the pre-digital era pretty much just had to grin and bear it. We would grumble to our friends or complain to our parents, but we weren't going to get an audience with the school board.

  Times have changed. The current generation is armed with social media, and it's payback time.

  Students across America are increasingly turning to MySpace, Facebook and blogs to vent about real or perceived slights, setting the stage for an eventual Supreme Court ruling that will decide how much free speech students in America's public schools really have.

  While some teachers and principals are resigned to snarky and anonymous comments on the Web, others have taken disciplinary steps against students posting critical content. Among recent cases:

-Katie Evans, a high school senior in Pembroke Pines, Fla., was suspended after complaining about "the worst teacher I've ever met" on her Facebook page. Now a graduate, she's pursuing civil claims.

-Alex Fuentes, a Wesley Chapel, Fla., high school senior was voted out of the National Honor Society by a panel of six teachers for creating a Facebook page critical of his high school's low academic rating. The page drew crude and cutting comments from other students.

-In strikingly similar cases, students in two Pennsylvania schools were suspended for creating mock MySpace profiles featuring photos of their principals. Both pages were profane and laden with sexual innuendo. Sample epithets from one: "Big whore" and "big steroid freak."

  For decades, the issue of free speech in the schools seemed to be settled. In a landmark case in 1969, the Supreme Court upheld the First Amendment rights of public school students to wear black armbands to protest the war in Vietnam. The high court asserted that young people have First Amendment rights, noting "it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Short of a substantial disruption of school operations, the kids could have their say, the Supreme Court concluded.

  Four decades later, the stakes have changed. The black armband has been supplanted by the Internet, a potent tool for information, education and character assassination.

  For young people, the Web presents an unprecedented opportunity to share their views with their friends, schoolmates and the community beyond. Some use it more wisely than others.

  The two cases involving Pennsylvania school principals and MySpace could hold the key to the future of free expression for public school students. The cases ended up before separate panels of judges of the 3rd U.S. Circuit Court of Appeals, which reached opposite conclusions. One panel concluded that the student had a First Amendment right to publish his parody because the school district did not demonstrate that the outrageous (and unbelievable) statements about the principal would significantly disrupt the teaching environment. The other panel justified the school's actions as a way to preserve the principal's authority and avert future disruption.

  So what happens when the same court of appeals reaches conflicting opinions on the same exact day?

  In these cases, its members decided to go into an en banc session, essentially hearing the same cases again with the full complement of judges. The law is that murky, and might not be clear until the Supreme Court steps in.

  While there's no question that these attacks on principals were sophomoric and insulting, we tend to forget that students also have rights. Too often, adults seem to believe that you get handed the Bill of Rights along with your high school diploma; that's not the case.

  It's tough to defend such insults by teens, but check out the comments section of any online publication and you'll find adults posting abrasive, degrading, racist and sexist opinions, all with the full protection of the First Amendment.

  Government officials — and that's what public school administrators and teachers are — have no business limiting the free-expression rights of young people without some extraordinary and overriding circumstances.

  A 16-year-old posting a crude parody mocking President Obama would not be suspended from a public school. It's only when the target is a school official or teacher that school districts retaliate.

  The best legal path in these cases is to treat young people posting ugly and potentially defamatory content the way we would adults. If the content is illegal or threatening, charge them. If the content is libelous, sue them, as some teachers and principals have done. And if the content is neither criminal nor libelous, accept a provocative posting as the free speech that it is.

  The two cases now before the 3rd Circuit have one more thing in common. In both cases, the court records report that the children responsible for the rogue MySpace pages mocking their principals received significant punishments from their parents. Isn't that the best way to deal with these cases? When school administrators become aware of postings that malign teachers or principals, they should call the parents and let them mete out punishment.

  Parental responsibility is a beautiful thing: no lawsuits, no fees and no court of appeal.

  The First Amendment ensures that "Congress shall make no law" limiting free expression. It makes no mention of Mom and Dad.

  About the author: Ken Paulson is the president and chief operating officer of the Newseum and the First Amendment Center.