This week’s Supreme Court cases raise a superficially simple and familiar question: Where do we draw the line? However, in the digital age, answers to this question require much contemplation and nuance. Establishing boundaries between the public arena and private space, between the school and the home, between free expression and unprotected speech, is becoming more difficult in the era of LiveJournal and Usenet than ever before.
Tinker v. Des Moines established some precedent of permitting free expression in the clearly defined grounds of a public school. However, as Morse indicates, the scope of protected school speech since then has been far less universal. While Morse has its critics, the ruling, in my opinion, seems reasonable: stepping across the street from a school should not shield you from the confines of school restriction during school hours when you are still under school supervision – otherwise students would be able to just step off the curb of the school and start preaching cocaine use, an ostensibly bad development. However, after reading Morse, it is axiomatic that this ruling is limited in scope: it applies to speech promoting illegal drug use on the de facto physical grounds of a school during school hours.
Where restricting speech becomes problematic and overreaching in my opinion is when we use digitalization to blur the boundaries of speech – to confuse “school speech” with private speech. Donniger characterizes Avery’s speech as on-campus speech for First Amendment purposes because “the blog was related to school issues, and it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it.” What a bunch of hogwash! By this suspect judicial standard, Avery holding a gathering inside her home to speak out against the school’s actions should also be considered illegal since other students could view/hear her and the school administrators might become aware of it by the vast number of cars parked outside her home.
In short, the thing that seems so silly about Doninger is that – to anyone remotely familiar with technology – we would generally agree that a blog or forum on the internet with no privacy protections (and hosted on a third party unaffiliated website) is a public space, not a “school space.” Consequently, the issue with the law in the digital age seems to be that it doesn’t know where to draw the lines; the law does not distinguish between the case in Morse where the physical proximity (inches away from the school) makes it an effective part of a school space and an online forum where speech is expected to be in a public space. Merely because search engines allow administrators to better locate public speech shouldn’t mean that such speech is now school speech. (Or, in your opinion, should it?)
Also, the US v. ALA case further complicates this issue because it brings up the issue of regulating the internet inside a school or library. Does the fact that outside speech might be piped into the school via the net change its implications about whether it is public speech vs. school speech – or is that rash because we must draw a hard line somewhere?
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ReplyDeleteEric, I would have to disagree with you on your stance that "public space" on the internet does not equate to "school space" in Avery’s case. I argue that there is a difference between public space out on the street and the Internet as a public space.
ReplyDeleteIn the Morse's case, like you said, it makes sense to restrict speech that is across the street from the school. However, I would like to add perspective to possible reasons the principal took down the sign. 1) She did not want the students to get “riled up” by seeing the sign. 2) She wanted to protect the school’s reputation. As Morse states, the sign was created to draw attention from the news cameras passing by.
If the cameras had filmed the sign, thousands across the nation could have seen the sign and associated it with the school, which would cast negative light on the school. It is problematic if a school allows students to promote drug use on campus. Consequently, an influx of complaint calls to the school offices could cause a “disruption” in the normal school day. This disruption would be the administration's inability to efficiently deal with every day school activities because they are dealing with the repercussions of Morse’s decision to display his “Bongs 4 Jesus” sign on public television.
Of course, the situation I have just described is a hypothetical; however, I would also argue that is quite plausible to propose that it could happen in real life.
There are many similarities between Donniger’s case and the hypothetical Morse case I just described. Donninger's post has the potential to reach a very wide audience on the internet, just as Morse’s sign (in the hypothetical situation) had the potential to reach thousands of viewers. Both actions undermines the school administration's authority, which can pose as an issue. I argue that public space on the internet can reach such a wide spectrum of people that a student posting defamatory comments on the internet in an effort to undermine school authority should give the school jurisdiction to punish the behavior.
However, I do not believe that Avery would have been punished, or should have been punished, for passing out pamphlets about the issue or communicating her concerns verbally outside of school (I would call this public space “out on the street”. The distinction I draw is that the most publicity she could accumulate through verbal communication and pamphlets is to several hundred people as opposed to the thousands of people that have access to her blog. I would even go as far to say that if she simply e-mailed her message to various people, it would have been legal because she is keeping her message private. Her message did in fact create much publicity as many calls were made to school administration to complain.