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

Sherman

Fryer

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