An F for vulgarity, an A for free speech

There has been both good commentary and handwringing in the education blogosphere over the recent decision in A.B. v. State (Ind.App.2007). For example, see the following:

• Tim Stahmer
• Dave Sherman
• Wesley Fryer
• Mark van ‘t Hooft

For those of you who are interested, here’s my comment on Dave Sherman's post:

Dave, please see

http://tinyurl.com/2abg58

and my online presentation at

http://tinyurl.com/2ynpvz

In the case you cite, A.B. v. State (Ind.App.2007), the Greencastle Middle School student posted the following message on MySpace:

Hey you piece of greencastle sh-t. What the f-ck do you think of me [now] that you can['t] control me? Huh? Ha ha ha guess what I'll wear my f-cking piercings all day long and to school and you can['t] do sh-t about it! Ha ha f-cking ha! Stupid bastard! Oh and kudos to whomever made this ([I'm] pretty sure I know who). Get a background.

Here's what the court said:

A.B. openly criticizes Gobert's imposed school policy on decorative body piercings and forcefully indicates her displeasure with it. While we have little regard for A.B.'s use of vulgar epithets, we conclude that her overall message constitutes political speech. Addressing a state actor, the thrust of A.B.'s expression focuses on explicitly opposing Gobert's action in enforcing a certain school policy.

The court also found insufficient harm to result from A.B.'s speech

the State failed to produce any evidence that A.B.'s expression inflicted particularized harm analogous to tortuous injury on readily identifiable private interests as required to rebut A.B.'s claim of political speech.

One of the key aspects of libel is that you have to prove harm to your reputation. It appears that the court in this case viewed this as a student spouting off on a school policy issue, which was well within her rights, and found insufficient harm to the principal's reputation to warrant a finding of libel.

Dave, you say that you're worried about this happening to you. Is this any different than a post that said, "I disagree with Mr. Sherman's policy on piercings? Who does he think he is? He can't control me. I'm going to do whatever I want and there's nothing he can do about it. I hate you, Mr. Sherman."?

As you know, you need to have a thick skin when you're a principal!

Finally, I’ll close with some quotes. My favorite school law quote of all time is the one from the Barnette case:

• Without debate, without criticism, no administration and no country can succeed and no republic can survive. - Pres. John F. Kennedy
• If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter. - Pres. George Washington
• That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. - West Virginia v. Barnette (1943)
• If we don't believe in freedom of expression for people we despise, we don't believe in it at all. - Noam Chomsky

Comments

[Dave Sherman]

1.

Scott,
Thank you so much for clearing this up for me. Your explanation makes perfect sense. I posted your comments on my blog, however, I needed to delete the profanity because we are an elementary school. I hope you understand. In spite of that, I am intrigued by the irony of my "censoring" a comment that was written about the issue of freedom of speech!
I agree with you that we principals do need a thick skin. We are open to criticism all the time, and as long as we do what is right for kids, I think we can live with the criticism. I want to believe that there are plenty of people who support what we do in our schools. They are usually the quiet ones - it's the "no news is good news" way of looking at things.

[YT]

2.

Yet we wonder why kids turn out the way they do! If I was this girl's father, it would've hit the fan! Come to think of it, I'm not sure that my middle schooler would not have body piercings either.

I guess I understand and accept that people have the right to do as they please, but when will the world wake up and look at what our lack of structure or boundaries in our children's lives are empowering them to become!

[ande]

3.

Interesting to read this here Scott!
Mr. Gobert was my vice principal when i was a teacher at Greencastle before moving to ISU.
He has wonderful intentions for his building and school corporation. He cares so much about all in his building.. students and staff.
Shame this happened to such a nice guy.

[arvind s grover]

4.

Free speech for anyone is paramount. As a result though, we protect speech that disappoints us, humiliates us, degrades us and worse. The problem however, is not in the law that protects that speech, but in those who speak the words.

We as schools (and families of course) need to be raising young people with a value for respectful speech, and a desire to quash hateful speech. Our problem lies in not having done a wonderful job of that.