Saturday, November 08, 2014

#NYLA2014 : Content Creation, Copyright and Defamation

Mike Grygiel, from Greenberg Traurig (law firm), presented on this for the Intellectual Freedom Roundtable.  He is a first amendment lawyer.

Grygiel decided to focus on The digital speech rights of public high school students. The law is so unsettled that there is confusion.  The law is predicated on physical boundaries and other things that no longer matter.


The US Supreme Court had ruled on this right in regards to students, first in the 1960s (Tinkers). The Tinkers wore black armbands to school, in order to protest the Vietnam war.  Decided in1969.  The school's suspension of the students was a violation of their first amendment rights.  Students do not shed their rights of expression at the school house gate.  The test is content neutral.  Okay as long as the speech is not disruptive.  The ruling is very speech protective.  Provocative speech is okay.

Outside of the school, students are just like every other citizen.

Next case - Matthew Fraser, who gives an inappropriate (sexualized) speech at a mandatory school assembly for students of wide age ranges.  The ruling was that schools can punish a student for crude speech.  The school is charged with teaches students about their behavior.  The decision was narrow and focuses on three points.  This speech in other settings would have been protected by first amendment rights.  In this case, what was said was important (content based).

Hazelwood - deals with a school newspaper, which was dealing with sensitive social issues.  The Supreme Court ruled that it wasn't the students speaking, it was the organization (the school).  In this case, the school can suppress the speech as long as it is reasonable related to pedagogical concern.

Morse v. Frederick - had to do with a banner that a student unfurled outside of the school building, but during the school day.  This isn't the school speaking.  It isn't related to school work.  However, this would be like a field trip.  The fact that the speech was about the illegal use of drugs played into the ruling.  The content of the speech was important.  In Tinker, content was not important, yet in this case content (and viewpoint) was important.

Judge Alito - Education mission cannot become a rule for suppression free speech of students. He does not like viewpoint based discrimination.  This should not impact student rights to discuss controversial issues and political speech.

In the discussion, Board of Education v. Pico was mentioned,

Digital communication...

Fast forward to Weedsport, NY, where a student has a closed instant messaging buddy list, with an unfortunate icon about a teacher.  Another student printed out the icon and shows it to the teacher.  The student was then suspended during the investigation.  This "speech" was not occurring in the school.  The investigation concluded that it was dumb speech and that no harm was meant.  However, then the school suspended him for six months.  Our thinking after a Columbine affected this.

The case went to the Second Circuit, and was decided in 2007. This has now set the standard for student digital speech.  Other courts have adopted this approach. "...if it is reasonable that it could come to the attention of school authorities..."  Material evidence of disruption.  Tinker applies to this case (precedent).

Doninger - a high school junior.  An engaged and excellent student.  The students are sponsoring a battle of the bands.  The school changes the date, because a particular teacher could not be there.  She blogged that night about the incident and encourages fellow students to take action.

Later, the superintendent learns of her blog post and the student is punished.  When it goes to court, the 2nd Circuit applies Wisniewski. A tremendous and unprecedented expansion of the school's control over student freedom of speech.  The language used was hardly conducive to conflict resolution.

What is the scope of digital freedom of speech rights of public school students?

These occurred before the Dignity for All Students Act (anti-bullying, anti-harassment). How does that apply?

A question was asked about a student bringing religious text to school and the student being punished.  That is both freedom of speech and religious freedom.

Grygiel Is currently writing a paper/article on this topic.  

Private schools are not subject to the first amendment.  It is not the government (public school).  Private schools can limit communication.  


Mitch said...

It's all so confusing and contradictory in a way. Still, I often wonder what leads some people to even take the chance in what I'd call the wrong place or the wrong circumstances.

True, there's freedom of speech, but that applies to both sides sometimes, even if it's an entity and not another person. And one never knows the consequences of the action.

Jill Hurst-Wahl said...

Mitch, can you say more about what is confusing? I'd like to be able to help clear it up, if possible.

Responding to your second sentence, what has changed is "place". Places used to be the school's physical property, but it is not the confined anymore.

Given some current university protests, I found it interesting that freedom of speech does not apply to private schools.

Mitch said...

The concepts of place and context seem like it would be difficult for an arbiter to make the proper decision. Kind of like Bono of U2 saying what he said during a live awards show & others having to deal with the consequences when it was a spontaneous event.

To me, if something is inappropriate at school then it's inappropriate regardless of context. I will say that if it's an event that wasn't planned, which results in an unanticipated response, then context makes sense.

In a couple of the cases above, students read or presented something that was planned in advance and known to go against what the school stood for. I could be seeing it wrong, being an "old guy". lol

Jill Hurst-Wahl said...

Mitch, the court has expanded place and context through these rules. It is not that is difficult on an arbiter, but that it is difficult to know when a student's comments will be censored. When does an student in a public school really have the freedom of speech? At home? On the Internet?

Freedom of speech should mean that I can say something against my public school without retribution. If the public school believes in X and I believe in Y, I (a student) should be able to say so. In Tinker, provocative speech was okay, on school property. But then look at Donninger, which as a blog post done at home on the Internet.