Student bloggers might actually get a taste of free speech in Connecticut

Across the country, students in public high schools have discovered, to their dismay, that the First Amendment that's supposed to restrict government action apparently doesn't protect comments they make on the Internet while at home from punishment by school officials. Suspended, detained, or otherwise punished, students say their right to free speech beyond school officials' jurisdiction is being violated. A Connecticut legislator agrees and wants to ensure that students' right to speak their minds online is protected.

Avery Doninger, a high school student in Burlington, Connecticut, was barred from serving on the student council after referring to school administrators as "douchebags" on her personal blog. Robert Afnani, of Langley High School, in Virginia, was told to shut down his home-based proxy server or face suspension (public pressure forced school officials to back off). Justin Layshock, a Pennsylvania high school student, was suspended and transferred to an alternative education program for parodying a school official on Myspace. Wesley Juhl, a Nevada high school student, was suspended for making blog comments about a classmate and a teacher from his home computer. At least one school district, Libertyville-Vernon Hills Area High School District 128 in northern Illinois, has formally adopted a policy threatening students with consequences for material they post on the Internet during their own time.

Punishment of students for material they post online on their own time, off school grounds, is so common that the Electronic Frontier Foundation maintains a section of its Website devoted to the problem. The Student Press Law Center has also addressed the issue.

Courts are split on the issue. Working from a line of reasoning established by Tinker, a landmark decision regarding students' First Amendment protections, some courts have held that off-campus speech is beyond the reach (PDF) of public school officials unless it's threatening or otherwise disruptive to the school.

But in the case involving Avery Doninger, mentioned above, the U.S. Court of Appeals for the Second Circuit gave school officials wide discretion to punish vulgar, but non-threatening speech by a student even though it took place after school hours and off school grounds. The court's reasoning was that Doninger's blog should be treated as on-campus speech because "the blog was related to school issues, and it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it." They further reasoned that her choice of words could cause "foreseeable risk of substantial disruption" -- as a result of hurt feelings, apparently. That decision, issued just last year, would seem to empower at least one set of government employees to punish expression critical of those officials.

That's a powerful lesson in the consequences of speaking out for inmates of the public schools.

Until the U.S. Supreme Court decides to address the issue, hopefully extending the First Amendment to public school students, any solution will have to come through legislation. Connecticut State Senator Gary LeBeau has stepped forward to do just that. The legislation he proposes is simple, saying only:

Be it enacted by the Senate and House of Representatives in General Assembly convened:

That sections 10-233c and 10-233d of the general statutes be amended to prohibit school authorities from punishing students for the content of electronic correspondence transmitted outside of school facilities or with school equipment, provided such content is not a threat to students, personnel or the school.

Just a few words that would reaffirm the protections the First Amendment already seems to offer to free speech.

LeBeau's bill, assuming it passes, would apply only to Connecticut, of course. But that would mean the students of one state would be a little more certain in the exercise of their free speech rights.