Donny Tobolski, a Californian high school student, recently described his teacher at as a “fat ass” and “a douche bag” on Facebook when he was set too much biology homework. The student was suspended for cyberbullying, despite posting the remarks via a home computer used outside school hours. But the American Civil Liberties Union (ACLU) sprung to his defence, pointing out to his school, Mesa Verde High, that because the comments fell short of being threatening or of leading to “substantial or material disruption” they were protected speech under state and federal constitutions as well as the Educational Code. The school backed down and removed the suspension from the student’s records.
A victory for lawyers well-versed in law and precedents, certainly, but was it also a victory for free expression? Yes and no. Yes in that freedom of speech was taken seriously. But surely no in that the case will spawn thousands of abusive Facebook comments about teachers and perhaps encourage the pro-censorship lobby. Is that simply a price worth paying for circumscribing rights to freedom of speech that are at the heart of American democracy? Or is it a sign that the limits to freedom have been set in the wrong place?
At first glance this case seems absurd. From a British perspective, it might even be used as evidence of what is wrong with the far-reaching First Amendment speech-protection enjoyed in the US. Why should young people be licensed to abuse their teachers in a public forum? Does it really matter that the remarks were made from home? How does that serve democracy? It is surely not the kind of speech that the founding fathers would have wanted to protect, anyway. And not all liberals would argue that it should be protected. John Stuart Mill, for example, who defended extensive freedom of speech, believed that paternalism was appropriate towards children: it was only adults that should be free to live and speak as they saw fit, provided they didn’t incite violence or cause harm to others in the process.
Yet perhaps on reflection the ACLU’s position has more to be said for it than at first appears. Tobolski is 15 years old, a transitional age. He should be learning about the importance of being allowed to speak his mind, and the likely consequences of doing so. And schools should be clear about the limits of their jurisdiction over expression. He won’t have gained widespread respect for his comments and is no hero. But surely he and his schoolmates will have reflected deeply on what is at stake here. Those who speak freely and abusively should expect to have their views met with powerful counter-speech, not least from the people they denigrate. As usual, the underlying question is not whether there should be limits to freedom of speech, but the thorny one of precisely where those limits should be drawn.
The letter from the ACLU: