A federal district court judge in Seattle recently denied a student's motion for a preliminary injunction challenging his high school's decision to suspend him for posting on YouTube a video presenting his teacher in an unflattering light. This case raises a whole host of fascinating First Amendment issues concerning student free speech rights in the electronic age.
In the case, Requa v. Kent School District, et al., a high school senior named Gregory Requa was involved in the creation of an unflattering video of one of his teachers. The video consisted of footage of the teacher captured secretly in the classroom and was set to music. (The district court notes that it is unclear how the student or students involved captured the images but suggests it was done with either a small hand-held video recorder or cell phone.) Among other things, the video comments on the teacher's hygiene habits; shows a student holding two fingers like rabbit ears over the teacher's head and making a "pelvis thrust" gesture behind the teacher without her knowledge; and contains extended footage of the teacher from behind as she bends over to pick up something, illustrated with the graphic "Caution Booty Ahead."
The video was posted on YouTube, and Requa linked to the video on his MySpace page. The school did not learn about the video until a local television station asked the school for comment about a story concerning student YouTube videos critical of high school teachers. The school suspended all students involved in the creation of the video for 40 days, the school district's Board of Directors upheld the suspension, and the federal district court rejected the Requa's request for a preliminary injunction enjoining this suspension.
This case raises a number of fascinating First Amendment issues concerning student speech rights on the Internet. The Supreme Court's cases in this area all concern speech that occurs on school property. With the rise of the Internet, lower courts have begun struggling to consider whether the school has the ability to restrict speech that appears only online.
In this case, the district court attempted to duck the student's argument that the school had no authority to restrict his off-campus speech by holding that the plaintiff's suspension was not based on his off-campus speech, but rather on his conduct - i.e., the secret recording of the teacher in the classroom in a manner that constituted sexual harassment. But rather than simply resting its decision on that ground, the district court went on to hold that the video lacked any valuable political or critical content and was instead simply "vulgar and lewd speech" that disrupted "the maintenance of a civil and respectful atmosphere toward teachers and students alike." The court concluded its opinion by noting that "the ability of students to critique the performance and competence of their teachers is a legitimate and important right," and urged the school to provide opportunities for its students to do just that.
One can hardly doubt that the teacher depicted in the video was unhappy to see it, but it is highly questionable whether the video amounted to sexual harassment. The video was not particularly lewd or obscene; the images of the teacher bending over (she was wearing pants) was hardly suggestive, and the student gyrating behind the teacher appeared for a brief second. There is also no evidence that the video actually did disrupt the educational mission of the school in any meaningful way, or that even any students saw the video aside from those who created it. Because the district court was simply deciding the plaintiff's motion for a preliminary injunction, it is possible that the school will present such evidence if the case goes forward on the merits.
(UPDATE: A copy of the court's decision can be found in the CMLP's Case Filings section.)