Federal court ditches student-free-speech decisions

Philadelphia's federal appeals court has vacated two key decisions of this past February that served to confuse matters. The 3rd Circuit Court "has decided to discard those conflicting decisions and rehear both cases on June 3," Wired reports. "School officials complained the rulings left them unclear on what legal legs they had to stand on when comes to punishing students for their online, off-campus speech." Wired adds that a larger panel of 13 judges – as opposed to the panels of three in February – will be rehearing arguments in the both cases in June and "the decisions, which are likely to be appealed to the Supreme Court, will govern Pennsylvania, Delaware, New Jersey and the Virgin Islands." Here's my post about the February decisions, also linking to Wired's coverage.

Student free speech to Supreme Court soon?

It was a big day for student free speech last Thursday, a day that ended with mixed results. One three-judge panel of the Third US Circuit Court decided for a student, and another panel from the same circuit decided against a student, Wired reports. Wired adds that the Supreme Court "has never squarely addressed the parameters of off-campus, online student speech, but might soon. So far, lower courts appear to be guided by a 1969 high court ruling saying student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” In one case the judges said that "school officials in Mercer County [Penn.] cannot reach into a family's home and police the Internet. That case also involves a MySpace parody of a principal created by a student at home," the Washington Post reported. In the other case, the judges "upheld the suspension of a Schuylkill County eighth-grader who posted sexually explicit material along with her principal's photograph on a fake MySpace page" – though the dissenting judge "said his colleagues were broadening the school's authority and improperly censoring students." The Post added that "school boards, free-speech advocates and others had been awaiting the rulings for clarity on how far schools can go to control both online speech and offsite behavior," and what they got was the opposite. [See also "Student free speech decision" and my original post on the Avery Doninger case, "Teen name-calling: Federal case" and the ensuing lower-court decision.]

Student free-speech decision

It may not be the last decision in a federal court on this case (Avery Doninger's lawyer said it may need to go to the Supreme Court). It was a mixed decision, reflecting how complicated student free-speech cases in the digital age are. In Doninger's case against Lewis S. Mills High School in Burlington, Conn., the Student Press Law Center reports, "US District Court Judge Mark Kravitz decided [Mills High School principal] Niehoff and Superintendent Paula Schwartz were entitled to qualified immunity, which protects 'public officials from lawsuits for damages, unless their actions violate clearly established rights'," the judge said in the ruling. Doninger, he said, hadn't clearly established her First Amendment right "to criticize her principal in an off-campus blog that used coarse language," the report added. Judge Kravitz cited two somewhat conflicting cases in his opinion: "Bethel School District v. Fraser, in which the Supreme Court ruled that a student's lewd and vulgar speech was not protected on-campus, and Tinker v. Des Moines Independent Community School District, which recognizes First Amendment protection for student speech on-campus as long as it does not substantially disrupt school, demonstrating a confusion among courts about which standard to apply to Internet student-speech cases," according to the Student Press Law Center. According to the Associated Press, the judge did let stand Doninger's claim that her right to free speech was "chilled" when the school "prohibited students from wearing T-shirts that read 'Team Avery' to a student council election assembly. That matter can proceed to trial."

Students' online free-speech rights

Law Prof. Mary-Rose Papandrea at Boston College recently looked at "all of the various justifications for limiting juvenile speech rights" - including the in loco parentis doctrine and Tinker's material disruption test - and "concludes that none of them supports granting schools broad authority to limiting student speech in the digital media." In "Student Speech Rights in the Digital Age," she advises that, instead of making punishment or the restricting of digital speech, schools' primary approach should be to "educate their students about how to use digital media responsibly." Her article will appear soon in the Florida Law Review.

CA videogame law update

California Gov. Arnold Schwarzenegger has appealed a federal court's injunction against a law banning violent videogame sales to minors, the Associated Press reports. "The law, signed by the governor in 2005, prohibits the sale or rental of violent video games to anyone under the age of 18 and requires that such games be clearly labeled. Retailers who violated the act would be fined up to $1,000 for each violation." The judge had found the law unconstitutional, saying its definition of violence was too broad and its supporters had failed to show a clear relationship between videogame play and children's behavior. "His decision echoed a string of rulings in other states where similar laws were blocked by challenges by video game industry groups," the AP added.