Ed Law Briefly: Students' Disrespectful Facebook Comments May Be Protected Speech

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RCEd Commentary

Background: Katherine Evans was a senior at Pembroke Pines Charter High School in Florida when she created a group on Facebook titled, "Ms. Sarah Phelps is the worst teacher I've ever met." The purpose of the group was for students to voice their dislike of the teacher.

Evans described the Facebook site as being "for those select students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and her insane antics: Here is the place to express your feelings of hatred." After two days, she removed the group, and Ms. Phelps never saw it.

It later came to the attention of Pembroke Pines principal, Peter Bayer, who suspended Evans for three days and removed her from advance placement classes to lesser honors courses. Evans's Notice of Suspension stated that she was suspended for "Bullying/Cyberbullying/Harassment towards a staff member" and for "Disruptive Behavior."

Evans sued Bayer individually (not the school district), claiming the principal violated her First Amendment free speech rights. Furthermore, she argued that her off-campus Facebook posting was
in a non-threatening public forum and her punishment caused an "unjustified stain on her academic reputation." In response, Bayer argued that Evans's speech should not be protected because of the way it disparaged Ms. Phelps and because it "has serious consequences for its potential defamatory content." In addition, Bayer claimed that "school administrators need not wait until a substantial disruption has already occurred prior to taking action."

Issue: Did the principal violate young Evans's constitutional free speech rights when he punished her for a site that was taken down, that Ms. Phelps never saw, that was non-threatening, and which was done off-campus?

Legal Principles: The U.S. Supreme Court has ruled that student freedom of speech does not end at the school house gate. However, school officials can prohibit and punish student speech if it causes substantial disruption in school or interferes with the rights of other. Courts have also ruled that schools can restrict student expression if officials have evidence to "reasonably forecast" substantial disruption or if there is evidence the speech is defamatory.

Outcome: The court ruled in favor of Evans, the student. According to the judge, there was no evidence that the principal had a well-founded expectation of disruption. As well, the judge explained that if school officials were able to restrict speech based merely upon a "potential of defamation," then "students everywhere would be prohibited from the slightest criticism of their teachers, whether inside or outside the classroom."

On the topic of whether Evans's speech was in fact defamatory, the judge explained that "a statement of pure opinion does not give rise to a defamation action," and to call a teacher her "worst teacher ever"
is clearly opinion. After reviewing other student speech cases where courts have upheld student punishments, the judge emphasized that in this case, Evans's Facebook opinion was published off-campus, did not cause any disruption on campus, and was "not lewd, vulgar, threatening, or advocating illegal or dangerous behavior." Therefore, the court concluded that the student's speech in this case "falls under the wide umbrella of constitutionally protected speech."

Lessons for Principals and Teachers:

  • The First Amendment protects student freedom of speech in the public schools. However, school officials can limit that freedom if it causes substantial disruption or interferes with the rights of others.
  • Officials do not have to wait until an actual disruption occurs but can restrict student expression if they can reasonably forecast substantial disruption. However, that forecast must be based on evidence, not on fear or intuition.
  • Students do not have a right to defame classmates, teachers or administrators. But a statement of pure opinion is not defamation.

U.S. District Court for the Southern District of Florida Evans v. Peter Bayer, in his individual capacity, 684 F.Supp.2d 1365, Case No. 08-61952-civ (February 12, 2010).

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