Free Speech Takes A Hit In Missouri

The United States Court of Appeals for the Eighth Circuit recently upheld the right of a school to discipline two students for their participation in setting up a Web site that, according to the court, contained racist and sexually explicit and degrading comments about particular students. It’s the latest in a string of cases where the courts have wrestled with the balance between a public school’s right to invoke discipline and students’ First Amendment rights. The added wrinkle to these cases is that the activity typically takes place off school property and after school hours. So, one may ask, how can the school discipline the students for that? The answer is, the school can drop the hammer if the off campus activity creates a “substantial disruption to the school’s operation.” According to the court, that’s what happened here. The posts caused enough of a ruckus among the school’s students that the discipline was justified. And I suppose we may feel that the result is well and good in a case where the speech is so clearly hateful. But if the justification is not the content, but rather the effect, this might present the always dreaded “slippery slope.” I can envision fairly innocuous speech causing a disruption – what happens in a very conservative school when a student sets up a Web site advocating socialism? Or in a more liberal school where the Web site supports Todd Akin? There might be a big disruption from either one. Can the school shut those sites down? I hope not. And it may be worth tolerating some speech we don’t like to protect the speech that we do. They still teach Civics class in most schools, right?