What about the First Amendment?
posted by Howard Wasserman
Tracie Egan Morrissey was extremely upset (rightfully so, I guess) about a rash of racist and hate-filled tweets that followed Barack Obama’s re-election last Tuesday, some of them from high school students. In a follow-up post on Friday, Morrissey displayed a number of the tweets from high-schoolers (identified by name and school), reported on her efforts to urge administrators at their high schools to punish the students for violating the student code of conduct or some such, and reported on the responses (or non-responses) of school officials. Katy Waldman at Slate wrote a take-down of these efforts, pointing out that teenagers think, say, and do stupid things all the time; while calling attention to the tweets is fair game, trying to have them punished for them seemed “petty and vindictive.”
Worse, Morrissey’s stunt ignores the First Amendment. Most of the tweeters she identifies attend public school, so I am not sure on what basis a school should be able to punish these students or why she believes urging them to do so is a good idea. The scope of student speech is ever-narrowing, particularly on-line speech, which neither courts nor school administrators seem to understand. But none of the tweets that Morrissey describes should fall within the ambit of school regulation. There is no indication they were sent during school hours or that they were directed to the school; the students were talking to the public at large, engaging (however stupidly) in the broader public dialogue. Schools should be encouraging that engagement. And while we hope schools educate their students about the need for civil discourse, it is not and should not be their role to police students outside the school walls. Similarly, school “codes of conduct” are not intended to control student conduct 24/7. I would be quite troubled if any of the schools tried to do so or if a court allowed them to.
This also makes Morrissey’s piece troublingly demogogic. She is attempting to shame school officials to drastically expand their authority in a way that should raise First Amendment alarms, to shame school administrators for not violating the First Amendment rights of their students, and to set the students up to have their rights violated by over-officious school officials.
Finally, a word to the student authors (as well as everyone else saying stupid things on Twitter or anyplace else on the interwebs): Your account was not hacked, so just stop. I will defend to the death your right to air your insipid thoughts in a visible public forum 140 characters at a time. But if you go there, own what you say and let the chips fall where they may.