December 7, 2012
By Chris Hill
Tinker v. Des Moines Independent Community School District was a case about students’ rights to free speech. The majority opinion, written by Justice Abe Fortas in 1969, says, “It can hardly be argued that either students or teachers shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” Besides being the basis for the name of this newsletter, that decision established students’ right to free speech in school.
A North Carolina law that took effect on December 1 called the School Violence Protection Act threatens to restrict students’ right to free speech, whether they are at school or home.
In a provision about cyber-bullying, the law prevents a student from using “a computer or computer network …with the intent to intimidate or torment a school employee ….” Bullying is a problem and the use of technology can make it worse. Legislators and school personnel should take bullying seriously. What should not happen, however, is the infringement on the free speech rights of students.
Often, statutes are found to violate the First Amendment of the United States Constitution because they are “void for vagueness.” According to an op-ed about the law from Sarah Preston, legislative director of the ACLU of North Carolina, “‘intimidate’ and ‘torment’ have never been fully defined in state law,” which means they are vague.
One of the bedrock principles of libel and slander law is that “truth is an absolute defense.” This statute can punish a student if he or she posts a “real …image of the school employee on the Internet.” It also punishes a student who makes “any statement, whether true or false, intending to immediately provoke or likely to provoke any third party to stalk or harass a school employee.” While this section of the law is not about defamation in civil law, it does carry the dire consequences of the criminal penalty of a Class 2 misdemeanor.
Let’s say a student posts a Facebook status update that says something like, “I’m sick of Ms. Jones always giving pop quizzes on stuff she told us not to read and we all get Fs.” Assume that Ms. Jones does give pop quizzes on material she tells the class not to read. Then let’s say an alumnus of the school reads that post and responds, “She does that every year. I talked to my lawyer dad and he says if I can track her down at the school and serve her with a complaint, I can file the lawsuit we’ve been planning.” This seems as if it could be punishable because a third party is responding to the truth and intends to find Ms. Jones and do something that she may find to be harassment. In every other way this speech would be perfectly legal.
As with all school-based punishments, there is the very real fear the punishment will disproportionately affect minority students, especially in this case given the vagueness of the law and that its application is left to the arbitrary judgment of school personnel. According to a fact sheet by Advocates for Children’s Services and the Great Schools in Wake Coalition, 72.2% of black students who were charged with violating the cell-phone-use policy were short-term suspended, compared with 29.9% of their white counterparts for the same infraction.
Cell-phone use is an important part of the School Violence Prevention Act. Often, students access social media through their cell phones. A 2010 study found that African Americans are overrepresented on Twitter; while African Americans are about 12% of the population, they make up 24% of Twitter users. Disproportionate punishments and overrepresentation on a social media network seems to create an environment ripe for black students to receive the majority of the Class 2 misdemeanors under this law. School personnel and students have enough disciplinary issues to handle without having to worry about the “Tweet to Prison Pipeline.”
This law does not account for the age-old issue of students griping about teachers. It is a rite of passage to question the judgment of adults until you become one. If this law was in effect at the time the legislators who passed it were in school, there would be a lot of misdemeanants in the General Assembly today—surely they scribbled a doodle of a teacher or said something harsh while in the playground. Technology should not eliminate a student’s right to be a child or adolescent, and it certainly should not affect the free speech rights of the student.
The School Violence Prevention Act is silly and, because of its criminal consequences, incredibly dangerous.