Tuesday, June 26, 2007

School speech: Morse v. Frederick "Bong Hits 4 Jesus" Supreme Court opinion has some subtle hints

The case Morse v. Frederick, decided Monday June 25 by the United States Supreme Court in favor of the Juneau, Alaska school district, ruling that it had not violated the valid First Amendment rights of student Joseph Frederick when he displayed a banner that read “Bong Hits 4 Jesus” on a public street in front of the Olympic Team on the way to Salt Lake City for the 2002 Winter Olympics.

There is some irony in that now Mr. Frederick, now 24 and a young adult, himself teaches English as a second language in China. From all appearances, it sounds like he could teach high school English in the U.S. and, with or perhaps in spite of his politically libertarian ideas and expression of them, he might be very effective with many students in teaching the accepted curricula of composition, grammar, and generally recognized literature. At least, he would be in a position to know both sides of this argument.

The Court majority noted that, although the banner was displayed on a public street, it occurred in a school sanctioned event and was in close proximity to school and would be perceived by others as connected to school. But there are even more critical lessons from the opinion.

One is first recognition of the tenuous position of many high school administrators, who must protect students from threats to security and particularly from enticement to disobey the law. The next is to consider the responsibility of a speaker in assessing how an ambiguous bit of speech is likely to be interpreted by others, in this case other high school students who are not fully mature cognitively. The Court felt that the message could most reasonably be interpreted as enticement to use marijuana, a controlled substance. If so, administrators could reasonably perceive it as a safety threat and not legitimate speech. Mr. Frederick claimed that the sign was essentially a joke and meaningless gibberish. He seemed to admit that he liked the idea of showing up in the limelight on television. However, in assessing the possibility of disciplinary action, he needed to consider the possibility and practical likelihood that many people would interpret the sign as enticing.

A good question, raised in several places in both the majority and various supplements and dissents, is whether the sign constituted a valid argument for repeal of drug laws. The majority felt that it does not, but it seems to me reasonable that it does. People often use irony in expressing political ideas, especially in drama, film, and political or advocacy commercials. That seems reasonable here. There was also some discussion over whether the school is entitled to have its anti-drug educational message defended from challenge, but some court members, while defending Morse, maintained that it does not (which is what the Bush administration wanted). So the significance of the opinion as a legal precedent in other first amendment cases may be limited. Imagine, for example, how a broader ruling could affect gay groups in public schools if school boards were determined to push “abstinence only” messages. It’s ironic that some religious conservatives had sided with Frederick because they want the right to push anti-gay messages in public schools, and that idea probably was not what Mr. Frederick intended when he displayed the sign. So, ultimately, the Court is warning speakers, be careful of how others will perceive your speech and your motives, given the context of the display and even your circumstances, here as a student.

The Court did note that “offensiveness” of speech alone might not have justified administrative action against Frederick. Sometimes, the Court noted, genuine political speech will offend some people, especially when irony is involved. That comment would need to be considered in the context of the public outcry against Don Imus and other media hosts.

This ruling concerned a high school student and administrative, non-judicial discipline taken against him. It did not involve criminal prosecution (as for enticement). However, the case might have implications in other situations involving speech by teachers (including substitute teachers) as well as students. The Court discussed a lot of the previous audit trail of case law (Tinker, Hazlewood) etc., and it does seem that most of the cases have to do with speech that occurs at school, perhaps in school newspapers or yearbooks, and in close proximity to school property at sanctioned events. Nevertheless, the Internet and search engines, as we know from COPA, add a new dimension to this problem that has only been apparent for the past few years. A school district may set up an age appropriate and approved curriculum, only to have it undermined by comments that a teacher makes from home on the web, easily found by students from search engines. There is a risk that students may find some materials authored by a teacher that they know as enticing. The Court was careful to word the opinion so as not to box itself in for future cases of broader implications (as for teachers) that it knows are coming down the pike.

Text of opinion (PDF) at Supreme Court website, here.

Tuesday, June 05, 2007

COPA: the ambiguities parallel similar legal issues for the speech of teachers

In February I discussed a couple of textbooks that take up teacher free speech. Of particular concern was the notion that teachers may risk discipline and firing if they discuss their personal affairs in a public space (whether the Internet, magazines, television appearances) and if these disclosures could be perceived as encouraging disturbances in the school system. Along these lines, on December 6, the Dr. Phil show had (writeup) taken up the case of a teacher whose contact was not renewed because of having appeared in pornography ten years before, and this sort of incident has occurred numerous times around the country.

There are several legal concerns here the crisscross. One is a recent Supreme Court ruling that public employees do not necessarily have First Amendment protection when they blow the whistle as part of their official duties. But the main concern I have is off-the-job speech by teachers (or other public employees). Over time, the courts have become much more sympathetic to the idea that teachers may express their own opinions on their own initiative when not on the job. They have tended to draw the line when the speech poses a risk to good order and discipline within the schools that they work, and this must take into account the cognitive immaturity of some students when they access the speech. (Here we get closer to COPA – and after all, students go to school to learn the critical thinking skills – those four years of high school English -- that enable them to understand more ambiguous materials in the medai.) There has evolved a general notion or unwritten doctrine that public disclosures of a personal nature pose more risk of this.

In the Philadelphia COPA trial, on Oct. 30, (blog entry of visit) the role of schools came into play when one witness discussed the controversies school boards face in deciding what books or other materials, especially concerning sexuality, to be made available to students in public school curricular or libraries. Parents have deep differences in what they consider suitable for their kids, and these reflect subtle variations in cultural values regarding the family, religion, and personal motivation.

Another important concept is the media upon which content is placed. In general, as courts have said repeatedly, intellectual property law in both criminal and civil areas regarding the legality of content is independent of the media or manner of distribution, and in most cases (although not completely so in COPA) independent of whether the material is free or charged for or generates profits.

The March 22 COPA opinion by Judge Reed (writeup), on page 78, note the ambiguity in COPA caused by the topology of distribution of content through websites. It is impossible to say what “taken as a whole means” because of the practical likelihood that some content will be located by a search engine and a visitor may view only a small amount of content relative to the intended whole. On the other hand, with a book, a visitor, when browsing in a library or bricks-and-mortar bookstore, is likely to see much more of the author’s total work before encountering a troublesome subset of the work. Likewise, the definition of “minor” is ambiguous. A piece of writing might seem prurient to a thirteen year old and valuable to a sixteen year old. More troubling, a fourteen year old who is cognitively mature for his age might find something valuable that a less mature fourteen year old would find tempting or enticing as to harmful behavior. (This is the so-called “Smallville Problem” – the characters Clark, Lana, and Chloe, played by young adults, are more much “mature” than average for their fictitious ages). Courts do not look lightly on content-based restrictions on free speech, and restricting speech because it appears on the Internet or a profile or blog raises serious strict scrutiny problems.

All of this can apply to the way school systems build personnel policies regarding the speech of teachers, however. In general, school systems are very concerned that a less mature student could be provoked by a provocative body of content located out of context by a search engine. This translates very quickly into concerns from parents in a pluralistic community, as located above. This is why school boards do not like to see teachers broadcast controversial information about themselves on the web. And the COPA opinion gives some substance to the notion that school boards may rightly be concerned about what might happen when material is discovered out of context.

“Personal” is itself a loaded concept. Administrators may often look the other way unless they are sure that the material comes form a particular teacher, and they might encourage that teachers speak anonymously when addressing provocative problems and disclose their own experiences. This contradicts what other human resources experts have proposed when developing blogging policies. While the ACLU supports the right to anonymous speech, circumstances in a story or piece of writing often can identify the speaker anyway, invoking well known problems in publishing law, where someone can be defamed if he resembles a negatively-portrayed character even in a work of fiction with names changed (the “Touching” or “Bell Jar” cases). Furthermore, as a practical matter, anonymous (or pseudonymous) speech is often not as effective politically as is speech where the author self-identifies.

Furthermore, speech that simply relates to the idea that someone belongs to a minority group, perceived or real, is often no longer regarded as personal. In many communities, to say that one is LGBT would not be seen as personal, it would be seen as identifying with a particular group. But that paradigm does not encourage totally honest, non politically correct airing of issues that have personal consequences. Likewise, “family pictures” in a profile are usually not regarded as “personal” because they tend to be non-provocative, and furthermore the institutionalization of marriage gives some protection to the speech (just as it does with family photos in the workplace itself.)

Another issue of the context of Internet speech “taken as a whole” occurs when a teacher makes a revelation (direct or inferred) that compromises his or her credibility as an authority figure for minors, or suggests unfitness to be in that position. Generally, one would think a school system or any employer for that matter should look at everything as a whole rather than draw questionable “conclusions” from just one piece or page, but employers have, in general, expressed the same behavior in looking at pages on job applicants’ Myspace profiles. There are concerns of potential liability here. The underlying doctrines of the military policy “don’t ask don’t tell” for gays, which allows a command to take any isolated statement, public or private, as rebuttably presumptive evidence of a “propensity” to engage (in the military context) forbidden (homosexual) conduct, and the tendency for appeals courts to uphold the constitutionality of government to use this kind of presumptive doctrine in a sensitive job (the military) sets a legally disturbing precedent for other employers with sensitive jobs, and that would include school systems.