Student's Facebook Posting is Protected Free Speech, Federal Court Rules

Affiliate: ACLU of Florida
February 16, 2010 12:00 am

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Student’s Facebook Posting is Protected Free Speech, Federal Court Rules

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FORT LAUDERDALE, Fla. – In a ground-breaking case involving freedom of speech on Facebook and other social networking tools, the American Civil Liberties Union (ACLU) of Florida won the initial round in a lawsuit brought by former high school student Katherine Evans against her then Principal at Pembroke Pines Charter High School.

In a ruling issued late Friday afternoon, February 12, 2010, United States Magistrate Judge Barry L. Garber, who is hearing the case by the parties’ consent, denied Principal Peter Bayer’s Motion to Dismiss Ms. Evans’ complaint, and rejected Bayer’s claims of qualified immunity from suit for damages.

“This is an important victory both for Ms. Evans and Internet free speech because it upholds the principle that the right to freedom of speech and expression in America does not depend on the technology used to convey opinions and ideas,” noted the ACLU of Florida’s Associate Legal Director Maria Kayanan.

While a senior at Pembroke Pines Charter School, Evans created a Facebook page entitled “Ms. Sarah Phelps is the worst teacher I’ve ever had” from her home computer and invited other students to voice their dislike of her teacher. After several students’ postings defended the teacher and berated Evans for her opinion, Evans took the page down.

The principal and teacher only became aware of the posting after it had been taken down, and never even saw it. Nevertheless, Evans was suspended for three days and removed from Advanced Placement classes as a punishment for her Internet posting. Evans sued Bayer for injunctive relief, seeking to clear her record, and nominal damages. The Principal moved to dismiss the case.

The Court’s ruling recognizes that Evans’ off-campus Facebook posting of her opinion about a teacher “falls under the wide umbrella of protected speech. It was a student’s opinion about a teacher, which was published off campus, did not cause any disruption on campus, and was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior.”

“The potential spark of disruption had sputtered out, and all that was left was the [Principal’s] opportunity to punish,” Judge Garber ruled.

The court granted Evans the right to amend her complaint to demand that the parties who control her school records expunge her suspension.

According to Matthew D. Bavaro, the ACLU cooperating attorney who represents Ms. Evans, “We are pleased that the Court recognized that a student’s off-campus, non-violent expression of her opinion about a teacher, posted on the Internet, is protected speech. If schools began suspending every student who criticized a teacher, there will not be any students left to teach.”

Bavaro added: “The right to free speech is one of the fundamental core values of this great country. While schools retain the right to punish speech which substantially disrupts the educational process, the Constitution, and more specifically the First Amendment, will not tolerate overreaching such as we see in this case.”

Evans is represented by Matthew M. Bavaro, Cooperating Counsel for the ACLU of Florida; Randall Marshall, ACLU of Florida Legal Director; and Maria Kayanan, ACLU of Florida Associate Legal Director.

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