Beverly Hills (Speech) Cop I: Court slams schoolhouse gate on school discipline of YouTube posting



There are days when being in the business of defending the First Amendment rights of journalists is more rewarding than others. One of those less-rewarding days is when you see a substantive news story about an important judicial decision spoiled by a nitwit headline like this one: "For students, a right to be mean online?"
No matter what skimmers of the Los Angeles Times may have come away believing, a U.S. district court's recent ruling in the case of J.C. v. Beverly Hills Unified School District is not about a "right to be mean" at all. It is about a young person's right to have the same First Amendment protection as any other member of the public — no more, no less — when she is not under school supervision.
It is accepted that students have a reduced level of First Amendment protection when they are speaking on school grounds or at school-supervised functions, because of the school's interest in maintaining good order. But some school administrators are attempting to assume a 24/7 role as "good behavior police" by also claiming authority over students' off-campus, non-school-affiliated expression, sometimes on very slender jurisdictional grounds.
In the Beverly Hills case, a California principal suspended a student (referred to in court papers only as "J.C.") for two days after a parent complained that her daughter, a classmate of J.C.'s, was the subject of a cruel YouTube video made by students at Beverly Vista High School. It's undisputed that J.C. made the video, which showed her and several friends at a local restaurant crudely mocking a classmate, "C.C."

Before going any further with the First Amendment issue, let's add this substantial disclaimer: What J.C. did here was stupid and immature. She richly deserved to be punished by her parents, as would be the case with any off-campus misconduct. The constitutional issue — and it's a significant one — is whether schools can be trusted with authority to penalize whatever they consider to be "bad" speech, no matter where and when it occurs.

The sad reality is that many school administrators exhibit a complete absence of judgment when it comes to on-campus expression, censoring harmless newspaper stories and photos just because they mention pregnancy, drugs or — parents, hide your children's virginal eyes for this one — tattoos. This "principals gone wild" behavior makes it apparent that school administrators cannot be presumed to possess the self-restraint to be entrusted with unlimited disciplinary discretion.

In the Beverly Hills case, J.C. and her parents challenged her suspension under the First Amendment. In a ruling issued on November 16, 2009, U.S. District Judge Steven V. Wilson found that the school overreached in punishing the student for her statements in the YouTube video. But what is interesting — and worrisome — is the route that the judge took in reaching that conclusion.
The court evaluated the school's actions under the standard of the Supreme Court's 1969 Tinker v. Des Moines Independent Community School District decision. Under Tinker, schools may not punish student expression unless it materially and substantially interferes with the school's ability to conduct business.

Judge Wilson took great care to evaluate what the school was identifying as the "disruption" — that C.C. broke down crying at school and was forced to miss a class to visit with the school counselor — and found that it fell well short of what Tinker contemplates before the school may punish speech.

This is an incredibly important point. Unfortunately, young people do things that upset each other all the time — think of every ugly break-up or romantic triangle that makes high-school romance so agonizing. If hurting someone's feelings as a result of off-campus conduct were enough to justify a two-day suspension from school, there would be no rational stopping point to school disciplinary discretion.

The court rejected the school's attempt to use its own "disruption" of school activities — pulling the students seen in the video out of class to question them — as evidence that the YouTube video was itself disruptive. Schools should never be allowed to manufacture their own disruption by the way they choose to impose discipline.
As significant as these points are, the ruling in one dangerous respect risks escalating the erosion of students' First Amendment rights.

The student's attorneys argued that the student's speech was not "school speech" at all, and thus not subject to the reduced level of First Amendment protection that applies to speech on school grounds under the Tinker decision. Rather, they argued, the student was entitled to the full benefit of real-world First Amendment rights, just like any other speaker not speaking on school premises or at a school event.

The court rejected that contention for the flimsiest of reasons: because the video "came to the attention" of school administrators, it was effectively on-campus speech. This, of course, is nonsensical. There will never be a disciplinary case involving student speech unless the speech "comes to the attention" of the school.

And to be clear, the video was not found because J.C. did anything to "bring" it onto campus. To the contrary, the video only "came to the attention" of school administrators because the mother of the victimized student, C.C., showed it to them. J.C. was aware when she made the video that YouTube couldn't be watched on-campus because of school Internet filters, so she plainly did not speak in a manner that was calculated to be heard or viewed at school.

(Parental common-sense note here: The undisputed evidence established that J.C. asked C.C. shortly after the video was posted on YouTube whether she should pull it down, and C.C. told J.C. not to do so — because, unknown to J.C., C.C.'s mother told her to make sure the video stayed posted so she could show it to the principal. In other words, the victim's own parent escalated a dispute that could readily have been resolved by a discussion between the families with minimal harm done — by the time C.C. and J.C. had their conversation, no more than 15 users had clicked on the video, including the participants and C.C. herself.)

What the court has said, in practical effect, is that there can never be a school disciplinary case in which the speech lacks a sufficient connection with the school — the very existence of the discipline will itself establish that connection. That reasoning would be rejected out of hand anywhere other than school — if a New Jersey prosecutor decided to indict someone for robbing a store in Virginia because a videotape of the robbery "came to his attention," the case would of course be immediately dismissed for lack of jurisdiction. This one should have been, too.

Tagged: Off-campus Student Internet Speech, Uncategorized, underground