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How free are students to use social media?

This article first appeared in the St. Louis Beacon, Feb. 24, 2012 - Kirkwood High School is the latest public school to get caught in the uncertainties about how much free speech students have on social media.

The Kirkwood Call, the school's top-notch student paper, reported this week that a student was suspended for three days for a Tweet cursing a teacher. The student, Josh Spiller, sent the Tweet early this month after the teacher sent him to the office for refusing to surrender his cell phone. Spiller admitted his Tweet was wrong, but he still thought his rights were violated.

Principal Michael Havener explained that the high school considered tweets to be the equivalent of face-to-face communication. "Vulgar language toward a staff member or threats is just like saying it to the staff member," he said in the Call story.  "When you use it in a negative way toward staff members, it's just like you're saying it in the classroom."

But a lawyer for the Student Press Law Center, a Washington, D.C., organization that supports students' rights, told the Call that Havener had it wrong.  Administrators “can't just say that Tweets are the same thing as face-to-face communication because, well, they aren't the same as face-to-face communication." Unless the Tweet has the disruptive impact of a face-to-face conversation, it can't be treated that way, the lawyer explained.

Most Kirkwood students seem to agree.  A poll published by the Call reported that 74 percent of students thought students should not be punished for Tweets and 64 percent thought the punishment violated the First Amendment.

This area of the law is a mess. This much is clear: Students don't surrender their rights at the schoolhouse gate. A public school can't punish a student for wearing a black arm band to protest a war. It can punish a student for using off-color language in a student campaign speech. It can, because of a case from Hazelwood, censor a school newspaper that is part of the curriculum. It can also punish a student who holds up a sign with a drug message -- "Bong Hits 4 Jesus" -- across the street from a school during a school event.

But the courts are split when it comes to social media. Arguably, a Tweet in school is punishable like a face-to-face conversation or like a note intercepted by a teacher. But a Tweet or Facebook post from home might not be punishable if it doesn't disrupt the school. It's more like calling up a friend at night and complaining about the teacher. If, however, the Tweet from home is disruptive -- causes a fight in the halls the next day -- it maybe punishable.

So far the U.S. Supreme Court has dodged the cases about nasty student speech directed at principals and teachers from home computers. It refused this past fall to hear an appeal from Avery Doninger, a Connecticut high school student who was punished for a blog post calling her principal a "douchebag" because the principal had canceled a music event at the school. The bottom line is that principals around the country have no clear guide about what students can and can't say on their social networks.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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