Harming a Reputation: Unprotected Speech?

Prompt: Consider the case of J.S. in Pennsylvania. The federal district court in that case applied the standards of Bethel v. Fraser to rule against protecting her lewd remarks off-campus. Do you think this case was correctly decided by the lower court, or, as a Supreme Court justice, would you instead insist that all cases involving postings on Facebook, My Space, etc., be judged under the standards of Tinker v. Des Moines? Be sure to draw upon both philosophical and doctrinal lines of reasoning.

The case of J.S. is complicated. While the creation of the myspace page occurred off campus and was initially distributed to a non-captive audience, it did eventually reach the academic atmosphere to a point where it interrupted the educational environment. The content of the myspace page, referring to the principal as both a sexual offender and pedophile, brings up severe issues of libel and defamation. That in and of itself is prosecutable. However, in terms of free speech I would argue that the federal district court in Pennsylvania was justified in using Bethel vs. Fraser as a clear precedent and consequently siding with the school district in its decision to suspend the student for 10 days.

While in most situations I would argue under the Tinker vs. Des Moines landmark decision, J.S. used lewd and vulgar speech which ultimately undermined the school's principal and put in danger his educational mission as well as that of the schools.

In the Bethel vs. Fraser ruling Justice Brennan concurred the judgment stating that “To my mind, the most that can be said about respondent's speech - and all that need be said - is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was [478 U.S. 675, 688] not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent's remarks exceeded permissible limits.” In terms of the J.S. case, the respondent's remarks “exceeded permissible limits” due to the nature of the myspace page. It was clear there was an intent to defile the principal through the use of damaging information. Pedophilia is a damaging claim that would, if true, incite immediate reprimand. The fact that this was not true but rumored on a public social medium is a clear incitement to harm—perhaps not physically but in terms of social and academic agency.

Philosophically speaking, philosopher Zechariah Chafee would argue that J.S's speech was not in the social interest and therefore should have limited protection. There was no search for truth but rather a quest to destroy a reputation. In many ways, it could be classified as worthless speech as it does not serve to promote public interest or add to the public marketplace of ideas. Instead it serves to primarily damage. There is no attainment of truth in J.S.'s speech. In fact, if anything, the speech serves to promote the dissolution of truth.

If this incident were to have happened strictly off-campus—no viewing whatsoever by the educational community—it may be a different story. Because of its larger platform, the consequences are increased. For example, an interaction between two students in passing—mentioning the stuff J.S. included on the myspace page—while still defamatory does not have the same implications as a myspace page. Because of the nature of the incident and the distribution among the school it did create a negative environment for both students and staff. The fact that the information on the page centered around false facts (pedophilia, sexual abuse) indicates to a certain degree a level of hate speech. The intent was to harm this principal's career and defame his credibility with the confines of the school. The argument that this was produced off school grounds falls flat considering the audience was specifically targeted as students and faculty of the school. This is an issue of personal versus public expression. If J.S's intent was to garner revenge in a private manner this page would not have been made public. There was a clear intent to damage.

In terms of scrutinizing speech, Bethel vs. Fraser does not assume to enact any prior restraint. Rather, there is a doctrinal test of bad tendency. This is to say that once the words are spoken and they are words that offend others or might harm an individual then there is increased rationality to regulate or punish speech. In the case of J.S., there is clear bad tendency. It does not go as far as clear and present danger or incitement but does present offensive language with the intent to harm.

The previous case of Tinker vs. Des Moines grants greater free speech to students and rightfully so. In terms of free speech and education the supreme courts famous statement, the first amendment should “not be left at the school house door” speaks volumes. However, the opinion of the court in the case makes it clear that public schools must have a substantial reason for limiting or punishing student expression. In terms of J.S.'s case, one can easily argue that the reason is substantial. With the freedom of speech arrives a responsibility. While I agree with the Tinker vs. Des Moines case in that it grants greater free speech rights to students, the nature of the speech needs to be examined just as it would outside of an educational atmosphere. J.S. clearly did not understand the weight that comes with free speech. Instead of using it as a platform to enter into conversation and contribute to the marketplace of ideas she ultimately used her voice for severe defamation.