Last month, a public middle school in Concord, N.H., suspended a 13-year-old girl for posting on her Facebook Wall the wish that, instead of killing thousands of people in New York on September 11, 2001, Osama bin Laden had settled for killing the girl's math teacher. The girl's Facebook Wall was private, viewable only to her "Friends."
Another student's parent, who had seen the Wall post, reported the private posting to the girl's school. School officials then instructed the girl to let them see her private Facebook Wall. After she complied and they inspected her Facebook account, they suspended her.
This continues a troubling trend of schools intruding into students' private Internet activities. Recent cases:
- In 2008, Sonia Sotomayor, now a Supreme Court Justice but then sitting on the 2nd Circuit Court of Appeals, participated in a case involving a 2007 LiveJournal blog post that a student had made from her home. In that blog post, the student had criticized school administrators for an administrative decision and encouraged a peaceful letter-writing and phone-calling campaign in protest. The school punished the student by not allowing her to run for class secretary -- and refusing to allow her to take office when she received the most votes as a write-in candidate. Sotomayor controversially held that the school did not violate the student's First Amendment rights in disciplining her.
- In 2010, the 3rd Circuit Court of Appeals upheld a ruling that a school district had violated a high school student's First Amendment rights when it punished him for a parody MySpace profile he had made of his school principal.
- An Illinois student was recently arrested in part for posting content on Facebook commenting on his female classmates' physical attractiveness.
The First Amendment does not protect speech that is directed to incite "imminent lawless action." [Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969)] Courts thereby routinely uphold school punishment for at-home Internet behavior publicly advocating violence against teachers. [Wisniewski v. Bd. of Educ. of Weedsport Central Sch. Dist., 494 F.3d 34 (2d Cir. 2007); J.S. v. Bethlehem Area Sch. Dist., A.2d 847 (Penn. 2002)]
In this case, however, the Concord girl did not publicly advocate or threaten violence upon her teacher. She merely expressed the rather childish (but not illogical) retroactive wish that her teacher had died nearly 10 years ago "instead of all those people in the Twin Towers."
Furthermore, the girl's Facebook post was not public. The school may as well have punished her for muttering curses and epithets about her teacher at a slumber party at home with her friends.
Indeed, more appalling than the actual punishment is the fact that the school -- a government entity -- compelled the girl to make her private Facebook account available for inspection. The school's actions are eerily reminiscent of "Webcamgate."
From 2009 to 2010, high schools in Montgomery County, Pa., used remote-access Webcams and other spyware in school-issued laptops to spy on students outside of school. The schools secretly collected more than 30,000 images of students, including some where students appeared in varying states of undress.
Students sued the school district after it tried to discipline one student based on images it collected that appeared to show him with drugs at home (he was, shockingly, eating Mike & Ikes). The district has since settled multiple resulting lawsuits out of court.
What this all comes down to is that American government seems to think that Internet technology provides some kind of exception to civil liberties -- that it's OK to use computer intrusion tools on citizens, search their personal electronic devices without a warrant, monitor their email, unlawfully access their password-protected documents, and aggregate their personal data in one easily accessible place.
The girl's mother announced her intention to meet with an attorney. If we are any kind of civil libertarians, we will support her. Civil liberties don't end at the schoolyard gate.
ó Joe Stanganelli is a writer, attorney, and communications consultant. He is also principal and founding attorney of Beacon Hill Law in Boston. Follow him on Twitter at @JoeStanganelli.