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
• Dave Sherman
• Wesley Fryer
• Mark 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