Meanwhile, another judge in California handed down an opinion recently that protects the First Amendment rights of a YouTube bully. A high school in Beverly Hills, Calif., suspended a student, who in the opinion goes by the initials J.C., after she made a video in which she and her friends ranted about another student, C.C. The kids called C.C. a "slut" and "the ugliest piece of shit I've ever seen in my whole life." They made the video at a restaurant off campus, and then J.C. posted it on YouTube, where she told a bunch of other students to look for it. Overnight, the video got about 90 hits. The next morning C.C. heard kids talking about it at school, and went, crying, to a school counselor. The school suspended J.C. for two days for making and posting the video.
If you were a parent at this school—not J.C. or C.C.'s mother or father, but someone else's—would you want the kid who made this video suspended? My visceral reaction is yes. But law professor Eugene Volokh says that if you let schools discipline for behavior like this, you're talking about "really a dramatic limit on student free speech." What about the kid who makes another kid feel terrible by wearing an anti-gay T-shirt at the mall, Volokh asked me? Do you really want schools to police all the meanness and hatred among students, wherever it occurs?
The Supreme Court has typically said no. The old rule, which comes from the 1969 case Tinker v. Des Moines Independent Community School District, allows discipline of students for speech outside of school only if it causes a "material and substantial disruption" within school. (If you're vulgar in school, that's another matter: Schools can crack down on anything lewd in the name of decency.) Federal Judge Stephen V. Wilson said that C.C.'s tears and upset fell into the realm of "ordinary personality conflicts." He didn't defer to the school officials who said that based on their general experience of high-school cliques, a larger conflict could have broken out.
In other cases that Wilson cites, judges have been far quicker to crack down on students who use the Internet to make trouble. Courts have upheld school punishments for, among other things, students who created a fake MySpace profile of a principal (calling him a pedophile and a sex addict), showed a teacher a poem he'd written about a mass shooting of his classmates, and put online a drawing that showed a teacher with her head cut off. Maybe Judge Wilson is helping to right the balance by making it clear that schools can't punish students for anything and everything rude they do online just because they have the evidence.
And yet I'm also left with the image of C.C. finding out about the cruel video because other kids were talking about it and feeling vulnerable and rotten. How can schools help to head off bullying without trampling students' free-speech rights? As the bullying moves online, the question seems harder to answer. It's true about the sex-messaging Jeff Quon was doing, too. Before pagers, a cop might have written notes to a girlfriend or called. But he wouldn't have left behind hundreds of shreds of digital smut for his employer to find.