Q & A with Emily Gold Waldman, nationally-recognized expert in student speech
- What is the toughest student speech issue that schools are facing today?
A huge issue that schools have been grappling with for over a decade now is students’ digital speech. First there was AOL Instant Messenger and email, then Facebook and texting, and now there are so many different social media apps through which students talk with (and sometimes about) each other. Back in the “old days,” it was easy to say that schools just had authority over student speech that occurred within the schoolhouse gate. With digital speech that is accessible everywhere on smartphones, that physical dividing-line really doesn’t work anymore. Speech on social media can really affect the in-school learning environment—in particular, you can have speech that is harassing or even threatening. But there’s also real concern about schools having 24-7 power over student speech. So a balance that must be struck.
- How are courts striking that balance? What’s the standard for whether schools can restrict students’ digital speech?
So far, the Supreme Court hasn’t taken a case involving students’ on-line speech, although every year, I think it’s going to happen! In the meantime, the challenge is that there have been four Supreme Court student speech cases, but none of them involved online speech. Three of them occurred before the internet was even invented! So lower courts have needed to adapt the existing Supreme Court framework to deal with this issue. Generally speaking, the lower courts have reached a rough consensus that if a student’s off-campus speech (which 99% of the time at this point is digital speech) is likely to reach school and cause a substantial disruption there, then the school can restrict it. But of course, the determination of whether the speech is likely to cause a substantial disruption is very fact-specific, so each case gets decided on its own terms. Another thing that doesn’t get enough attention (in my opinion) is that there’s a lot of variation in how schools restrict student speech—sometimes they just tell the student to take it down, while in other cases, they actually punish the student. I wrote about this issue in an article for the Indiana Law Journal entitled Regulating Student Speech: Suppression versus Punishment, where I argued that more safeguards are needed if schools are actually going to punish the student speaker.
- Are there particular aspects of students’ digital speech that stand out to you as different from the speech that happens at school?
Definitely. Researchers have pointed to what’s called “online disinhibition”—people are much less inhibited when speaking online than in face-to-face conversation. They’re typically not looking at the person they’re talking about, and they don’t have to immediately face that person’s reaction…so they feel freer. For students, this means that they sometimes say things that are more hurtful or provocative than they’d ever say at school. One thing I began noticing about ten years ago was that a surprising number of student digital speech cases actually involved hostile speech about teachers and administrators—not other students! I became so interested in this topic that I wrote an article about it, entitled Badmouthing Authority: Hostile Speech About School Officials and the Limits of School Restrictions, which was published in the William & Mary Bill of Rights Journal and then cited in a Third Circuit case involving a very harsh fake MySpace profile that was created by an eighth-grader about the middle school principal. A real challenge here is that I think it’s important for students to have space to blow off steam and to sometimes raise real concerns about how school personnel are exercising their power. At the same time, some of this speech can be so crude and harsh that it’s really devastating to school officials. I think an important piece of the analysis, when deciding whether schools can restrict such speech, should be the extent to which the speech is voicing a genuine concern or simply amounts to harassment with no genuine message.
