"One Man's Vulgarity Is Another's Lyric"

Matt Welch  ("Off-Campus Speech v. School Safety," www.ojr.org/ojr, USC  Annenberg, March 12 2001) reported, "The demographic bubble of Americans born between 1975-84 is rapidly becoming known for three things: tarty pop stars, school shootings, and total Internet penetration. That volatile mix has helped create an entire legal category -- inflammatory off-campus Internet speech by minors -- that virtually didn't exist three years ago."

Welch found that the FBI's list of "risk factors"for school shootings reads like a definition of a teenage Internet geek: "Inappropriate humor," writing about "committing violent acts," and "no limits to, or monitoring of ... Internet use." But being a risk factor does not make these potentially dangerous activities illegal for young Americans.

Some actual acts included SchoolRumors.com, a popular anonymous bulletin board where teens from Los Angeles' San Fernando Valley called each other "fags" and "sluts"; a "People2Kill" hit list against classmates by an eighth-grade girl in Middlesex, New Jersey; and a Queens, New York, junior-high school student's Web site depiction of teachers as "sluts," strippers, and people engaging in oral sex.

Incidents of cyberbullying, inappropriate contact between adults and minors, sometimes illegal activity posted for everyone to see on social networking sites like Myspace have outstripped existing school conduct codes. How far does the schools' authority extend since most material is produced off-campus? With Internet access, texting, e-mailing, videoing, and photographing so prominent, it is difficult to keep speech out of schools, even if schools want to do this. New technologies aid instant production and distribution of material.

The Student Press Law Center, a four-person operation in Arlington, Virginia, provides free legal advice, information and lawyer referrals to student journalists. The center and the ACLU are the only national organizations that intervene regularly on the side of trash-talking teens in their conflicts with schools over private Web sites. But, the huge defense mechanism used by these organizations is the powerful First Amendment.

Still, according to Edwin Darden, senior staff attorney for the National School Boards Association, "Any folks who say to me that schools have overreacted, need only look at the evidence. I think that it's incumbent on the school district to react ... especially since Columbine, since many of the things that might have been looked upon as the foolish pranks of a misguided youngster now can certainly result in deaths and destruction."

The question may be where to draw the line. Darden, when he advises school board officials, tells them there are basically three types of student Web site, each suggesting a different response: The first are "offensive, obnoxious and insulting," the second are all that "plus some sort of veiled threat of violence, or of destruction of property," and the third contain an "outright blatant threat."

Schools Draw the Line

But where to draw the that debatable line? When confronted with third-category sites, school districts "need to respond, particularly when it's having a disruptive impact on learning," Darden said. The second category is "a little more difficult," suggesting less heavy-handed measures, such as holding a parent-teacher conference, or making obscenity-shy Internet service providers aware of the site.

Matt Welch said the National Education Association, a large teachers union, suggests a similar approach to combat what it calls "an epidemic of Web pages where students ridicule, vilify, and even threaten to kill teachers." In a January column in NEA Today, the NEA attorney Michael Simpson warns that schools have been burned in court for trying to punish private Web activity. Even when students engage in this sickening type of activity, it is difficult for schools to uphold punishment of off-campus offenders.

David L. Hudson Jr., of the First Amendment Center research team (www.firstamendmentcenter.org) said if a student created certain online expression as part of a class or even using a school computer outside of class time, then school officials could argue that the speech is in fact school-sponsored and therefore subject to less protection. But, The U.S. Supreme Court has said that speech on the Internet is entitled to the highest level of protection on par with the print medium. Students generally have broad freedom to express themselves on the Internet on their own time, using their own off-campus computers.

Hudson continued, "Another major issue regarding cyberspeech concerns the use of filters. Federal and state laws require public schools and libraries to install filtering software to protect minors from harmful material on the Internet. At the federal level, the Children’s Internet Protection Act requires public schools and libraries to install filtering software in order to receive federal monies for Internet hook-ups."

Many states have passed laws that mandate the use of filters to screen out material that is harmful to minors. Still, many free-expression advocates argue that filters block access to constitutionally protected materials because the filters are imprecise and overbroad. The examples are numerous. For instance, sites mentioning the National Football League's Super Bowl XXXVI were blocked by a filter because they contain the term “XXX.”

In order to combat perceived constitutional claims of free speech, schools start by building connections, a nexus between the off-campus activity and the on-campus discipline. Simpson reported if student off-campus cyberspeech could disrupt school, seriously threaten or actually cause harm to teachers or others, it is punishable. He continued, "The still-open question is whether this authority extends to off-campus speech and whether school officials can punish students for comments made in cyberspace that are merely uncivil or disrespectful."

Possibilities for linkage include: if a student called up the Web site at school, if the creator of the offending site learned HTML in a class, if students are talking about the site to the detriment of classwork, or if people were otherwise changing their on-campus behavior.

Still, a lot of the run-of-the-mill sites are just obnoxious, offensive, and insulting. According to Darden, "And at that point my advice to schools is, you just need to develop a thick skin." Most court cases have been pretty uniform in saying that when the expression occurs outside of school, and isn't produced using school facilities, school officials do not legally have the authority to punish students for those activities.

Conclusions

In conclusion, if you think old laws punishing profanity and blasphemy no longer exist, you're wrong — a surprising number of state laws still prohibit such speech, especially speech that takes the name of the Lord in vain.  Even though the laws are rarely enforced, they are still on the books. Still, "proper" public language, with thoughtful constraint, is respected by most Americans.

Do the rights of speech and free expression mean that we are forced to live in a verbally careless, loudmouth society? Sometimes legal rights do not cover proper ethical conduct. Although office cursing is so prevalent that pollsters haven’t even bothered to ask about it since 2002, when Public Agenda found that 44 percent of Americans hear foul language “often” in our daily lives (Duff McDonald, nymag.com/news/intelligencer, September 30 3007), the behavior of threatening others is never proper. Do we teach our children well? Do we consider sensitive situations and public reactions regarding speech? Might every word have an appropriate context?

"Take away the right to say 'f_ _ _' and you take away the right to say 'f_ _ _  the government'."  --Lenny Bruce