A Student Who Posted Profanities About Her School Principal on MySpace Wins Before The Indiana Court of Appeals:
Why the State Constitution Protected Her, And How She Would Have Fared Under The First Amendment

On April 9, the Indiana Court of Appeals ruled in favor of a female middle-school student known only as A.B., and against Indiana's Attorney General.

A juvenile court declared A.B. to be a "juvenile delinquent" because she had posted comments attacking her school principal and his anti-piercings policy on a MySpace page -- acts that the juvenile court judge accepted as constituting the crime of harassment. However, the appellate court directed the juvenile court to vacate the finding of delinquency, holding that the comments were protected as political speech under the Indiana Constitution's counterpart to the First Amendment.

In this column, I'll discuss the ruling and consider a question the Indiana court expressly did not reach: whether the student's speech would be protected under an analysis based not on the Indiana constitutional provision, but on the First Amendment itself.

The Facts of A.B.'s Case

The case against A.B. arose when another student, known as R.B., created a MySpace page that she falsely claimed belonged to middle school principal Shawn Gobert, and invited her friends -- including A.B. -- to post comments on it.

First, A.B. posted this comment: "Hey you piece of greencastle shit. What do you think of me [now] that you can['t] control me? Ha ha guess what I'll wear my fucking piercings all day long and to school and you can['t] do shit about it. Ha ha fucking ha! Stupid bastard! Oh and kudos to whomever made this ([I'm] pretty sure I know who). Get a background."

(Note: The bracketed material here is from the appellate court's decision, and indicates what the court interpreted the comment to mean.)

The next day, A.B. simply posted as a comment, "die….gobert…die." Also, she soon created a MySpace group entitled, "Fuck Mr. Gobert and GC Schools." There were other messages, as well, but the case against A.B. was solely based on the two posted comments and the MySpace group.

After learning of the comments, the Principal reported A.B. to the authorities.

Why the Appeals Court Found the Indiana Constitution Protected the Speech

As noted above, the Indiana Court of Appeals rested its decision solely on the protection of free speech embodied in Article 1, section 9, of the Indiana Constitution: "No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible."

Arguably, this provision could be read to provide less protection for speech than the First Amendment because -- unlike the First Amendment -- it specifically mentions responsibility for the abuse of speech rights. On the other hand, its mention of speech on "any subject whatever" indicates a broad protection for speech -- potentially even broader than that of the First Amendment, which has always been though to have political speech at its core.

In the end, the court decided not to speak to the First Amendment issue, and to rest its decision instead on the Indiana Constitution alone. Why? One possibility is that the court wanted to insulate the eventual decision from Supreme Court review. If the Indiana Supreme Court agrees with this decision, there will be no reason for the Supreme Court to take the case, for in our federal system, states' highest courts legally have the last word when it comes to the interpretation of state law. Alternatively, the court may have simply thought the question, under Indiana law, was easier and clearer -- as it noted an "abundance" of related precedent on at least one of the analytical issues raised by the case.

The juvenile court had deemed A.B.'s remarks "obscene," but the appellate court rightly disagreed. Nowadays, virtually no written material is ever deemed obscene; only photographs or films are criminally prosecuted under the obscenity laws. Moreover, while the FCC regulates language like that used by A.B. as "indecent," this communication occurred on the Internet, not on television or radio. Accordingly, this finding of obscenity was profoundly off-base -- more suitable for 1907, than 2007.

The appellate court, however, still needed to ask if -- pursuant to the Indiana Constitution's language -- A.B. had "abuse[d]" her broad right to speak. The court held that her speech was "political speech," in that it criticized a government actor's policy (the anti-piercings policy). Therefore, the court concluded, a particularly demanding legal test applied -- and the state had not passed it.

While the appeals court did not fully explain its reasons for this final judgment in favor of A.B., I suspect that it might have reached a very different decision if A.B.'s "die…Gobert…die" comment had been communicated to the principal directly. In the absence of a direct threat, allowing criminal charges of harassment to be based on Internet postings would have a significant, wrongful chilling effect on free speech.

While A.B.'s remarks are hardly particularly insightful, other students' remarks, in the future, may be -- and these students may end up being valuable whistleblowers as to oppressive and unfair policies in their schools.

In a situation, for example, of a teacher who students knew was molesting underage students, but whom the principal believed and defended, students' free speech could be integral to ensuring justice. Ensuring that speech like that can thrive, means allowing a broad realm for all student speech -- a realm that encompasses A.B.'s less crucial remarks, as well.

Would the U.S. Constitution's First Amendment Also Have Protected the Speech?

One final reason the Indiana appellate court may have punted on the First Amendment issue here is that the U.S. Supreme Court is right now deciding a case that may affect that issue: the "Bong Hits 4 Jesus" case. (In a prior column, I discussed the Ninth Circuit's opinion in the case.)

In the case before the Supreme Court, an Alaska school principal tore up a student's banner -- unfurled at an Olympics rally off-campus -- and suspended him. One of the issues considered by the Court at oral argument is whether it matters, from the point of view of schools' power to regulate, if speech can be construed as advocating violating the law. Some interpreted the banner as pro-marijuana; Justice Scalia therefore suggested that the school might have had additional power to veto a message that advocated law-violation.

There are many problems with this approach, and one of them is that when the government is parsing and defining what a given message says, we're already in shark-filled First Amendment waters. The "Bong Hits" banner's message was cryptic, to say the least, and in my earlier column, I considered the other messages potentially conveyed by the banner, other than a simple pro-marijuana message.

If Justice Scalia ultimately has his way -- which I think is very unlikely, given that on this Court, support for the First Amendment crosses partisan lines -- then not only the "Bong Hits" banner-holder, but also students such as A.B., could be in trouble. After all, A.B.'s "die….Gobert….die" could, in theory, be interpreted as a solicitation for someone to murder the principal.

That interpretation would be absurd, of course: This is a middle-school student, venting. Yet Kenneth Starr -- attorney for the school principal in the "Bong Hits" case -- argues that it should be up to a principal to be able to make judgment calls about whether to veto certain messages publicized through student speech. The problem, again, is that the more latitude the Court affords a principal, the more all student speech is stifled, including speech that may have considerable importance and relevance.

The Indiana court did the right thing in the A.B. case -- refusing to deem a middle-school student a juvenile delinquent for speaking out on MySpace. Let's hope the Supreme Court, in the "Bong Hits" case, does the right thing too.