The 4th Circuit says that it can
This past summer, the U.S. Court of Appeals for the Fourth Circuit ruled against student Kara Kowalski on her First Amendment claim. The case arose after Kowalski was suspended by her high school based on scurrilous remarks she had made about another student on a MySpace discussion page, while she was in her own home, on her home computer. Now, Kowalski is seeking Supreme Court review.
As with many First Amendment cases, the facts of Kowalski’s case aren’t pretty. First Amendment plaintiffs are typically a rogues’ gallery, and even courts that rule in their favor usually give their blessing to the principle, not the person. And surely, no one would defend what Kowalski said here—only her right to say it.
The MySpace webpage Kowalski created was called “S.A.S.H,” which, she testified in her deposition, stood for “Students Against Sluts Herpes.” However, a classmate who accessed the site said that “S.A.S.H” actually stood for “Students Against Shay’s Herpes”—with “Shay” referring to a fellow student who was discussed at length on the webpage.
At Kowalski’s invitation, about two dozen students from her high school joined the MySpace group associated with the webpage and thus accessed the webpage. Further discussion on the webpage then seemed to confirm that “S.A.S.H.,” and thus the herpes claim, in fact referred to the student known as Shay N., and not to “Sluts.” (Last names of juveniles are typically not used in judicial opinions in order to protect their privacy.) Shay N. was also called a “slut” on the webpage.
When Shay N.’s parents learned about the webpage, they filed a harassment complaint on their daughter’s behalf with the school. Kowalski was then suspended for violating the school’s rule against creating a “hate website” and its policy against harassment, bullying, and intimidation.
Thus, the core question the Fourth Circuit addressed was whether the policy could, consistent with the First Amendment, reach outside the school and into Kowalski’s home.
The Fourth Circuit held that it could. More specifically, it held that Kowalski’s suspension was constitutional because she “used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which ‘materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.’”
It seems to me that this case should have been handled under defamation law without the school stepping in. And if the accusation was true, it should have been protected as free speech. Another interest is where does the school get the authority it assumed? Is it enshrined in State or Federal law?