• May 31, 2012

Update (May 31, 2012): As Chad Kelsch’s post yesterday pointed out, reply briefs can be handy.  Linked here is the defendants’ reply brief in the Facebook/School case.  It is a strong brief into which it is clear that defendants put a lot of work.  Hearing is now set for July 13 at 9:00 AM in Edward J. Devitt Courtroom in St. Paul before Chief Judge Michael J. Davis.  

Update (April 23, 2012):  U.S. law establishes many threshold defenses for “state actors” challenged with constitutional violations.  In Minnesota’s mean and angry Facebook post case, defendants, as promised, invoke them to defend against claims that officials of the Minnewaska School District violated a student’s constitutional rights by disciplining her for comments made on Facebook.  Defendants are also alleged to have asked her to give them her password so that school officials could review the student’s Facebook posts, which request is apparently alleged to violate the Fourth Amendment.  (Can they ask for the tiny key to a student’s adorable diary?)  Defendants’ memorandum in support of their motion to dismiss is here.  It is a useful primer for constitutional/civil rights cases against schools and school officials.

Original Post (March 14, 2012):  All you have to do these days, it seems, to get national media attention is to bring a lawsuit that directly or indirectly involves Facebook.  Our society is consumed by (or at least concerned about) this new dimension in social interaction.

Looking at it from another angle, following on yesterday’s ML post regarding the evolution (and extinction?) of privacy, the internet blurs public and private as never before.  At a time when our society is perhaps more sensitized than ever as to the harms and danger of bullying and hate speech, the combination is a First Amendment pinch point.

A 12 year-old student, “RS,” said she “hated” an adult “hall monitor” on Facebook (“FB”), this got leaked to the Minnewaska School District No. 2149 and the district disciplined RS, threatening her with detention and “forcing her” to write an apology.  RS then posted a vindictive follow-up comment on FB wanting to know, “who the #^%%$ told on” her.  So she was barred from a class trip and given a one-day in school detention.  And now the district finds itself being sued by the ACLU in U.S. federal court for the district of Minnesota.  

If a teacher overheard a student saying these things in the lunch-room, would discipline violate the First Amendment?

If a school administrator overheard a student saying these things at an after-school hangout (which might be here, in Edina, Minnesota), would discipline violate the First Amendment?

FB is a virtual after-school hangout.  (In fact, a before/after/during school hangout.)

RS’ case has been assigned to Chief Judge Michael J. Davis (D. Minn.), who once sanctioned a lawyer for saying the word “damn” at a court hearing.  Judge Davis was particularly put off by the fact that there were school kids at the court at the time.  Here, below, is Minnesota Bench & Bar’s report of that matter:

During oral argument on cross-motions for summary judgment, counsel for defendants used a curse word (“damn company”). At the time counsel made the remark, juveniles and young adults were present in the gallery of the courtroom. The court concluded that the use of the word “damn” was appropriately sanctionable because it was “outside the realm of acceptable conduct. A curse word has no place in the courtroom, especially where its sole purpose it to drive home the point of an assertion.” The court concluded that the appropriate sanction was a letter of apology and a $500 fine, which was subsequently suspended upon receipt of the letter of apology. Nelson v. Ellerbe Becket Construction Services, Inc., 2002 WL 3157117 (D. Minn. 11/15/02) (Davis, J.).

Juveniles and young adults need to be taught about the power of speech, the harm and potential danger of speech, and the value of free speech.

The rest of us, too, might benefit from some guidance.

Leave a Reply

Your email address will not be published. Required fields are marked *