Mary-Rose Papandrea's blog

Hearing on National Security Leaks Features Much Media-Bashing, Little Progress

On the morning of July 11, the House Judiciary Subcommittee on Crime, Terrorism, and National Security held a hearing on the recent national security leaks.  I have watched a video of the hearing so you won’t have to (you can thank me later). Experts testifying included President George W.

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Leakers and the First Amendment

There has always been an active debate about whether the First Amendment affords government outsiders (like the media) any protection when they disseminate classified national security information without authorization.

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(Don't) Blame the Messenger: What to Do about National Security Leaks

FCC v. Fox: Rethinking the Regulation of Indecent Speech in a Time of Pervasive Media

Earlier this week the Supreme Court handed down its eagerly awaited decision in FCC v. Fox.  In a 5-4 vote, the Court rejected Fox's argument that the Federal Communication Commission had violated the Administrative Procedure Act (APA) by failing to give sufficient justification for its new policy banning "fleeting expletives" on broadcast radio and television.

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Another Victory for the "Douchebags"

A federal district court in Connecticut has granted qualified immunity to the high school principal and the school district superintendent who punished a student for calling school administrators "douchebags" on her blog.  Doninger v. Niehoff, No. 3:07-cv-1129 (D. Conn. filed Jan.

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Schools Lack Authority to Punish Online Student Speech

One of the major issues facing schools is whether they have authority to discipline their students for speech on the Internet.  In an article I wrote that will appear in the December 2008 issue of the Florida Law Review, I argue that public secondary schools have virtually no authority under the First Amendment to punish students for online speech.  I decided to write this article after hearing about cases all over the country where

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Students Shown Drinking on Facebook Banned From School Activities

School officials at Eden Prairie High School outside of Minneapolis punished 13 students after discovering photographs of them drinking on Facebook.com. As punishment, the students were banned from their sports teams or other extracurricular activities.

According to the Minneapolis Star Tribune:

Some parents are reportedly considering legal action because they view the school's action as too harsh. But legal experts say the area is muddy, because the mushrooming popularity of social networking sites is so new, challenges have yet to work their way up through the courts.

In the words of one student, the idea of school administrators nosing around social networking websites might be "creepy," but it is not necessarily unconstitutional. In this case, the school punished students for underage drinking, not their expression, and the athletes who were punished had signed a pledge not to drink as a condition of playing in the Minnesota State High School League. In addition, it is unlikely that the school violated the students' privacy rights by looking at pictures available to the public on the Internet.

It would be much more problematic if public schools tried to ban their students from using social networking sites altogether. Such a policy is not as unlikely as it may seem. Last spring, the University of Minnesota at Duluth announced a new policy barring all of its student athletes from participating in social networking websites such as MySpace.com and Facebook.com on the theory that the content of such websites placed the student-athletes and the school in a negative light.

If a university is banning its student-athletes from using social networking sites, a similar policy on the high school level is just around the corner.

As ridiculous as such a policy might sound, it is arguably constitutional under current case law. Several lower courts have held that students do not have a constitutional right to participate in extracurricular activities, and in 2002, the Supreme Court rejected a Fourth Amendment challenge to a public school rule requiring all students who participated in extracurricular activities to submit to random drug testing. See Pottawatomie County v. Earls, 536 U.S. 822 (2002). Based on these cases, it would be no small leap for a court to conclude that it would be constitutional for a public school to condition its students' participation in extracurricular activities on the forfeiture of their First Amendment rights.

This is not to say that such a policy should be constitutional, or that it would be a good idea. Banning students entirely from social networking sites in order to crack down on underage drinking and drug use would not prevent students from engaging in the unlawful activities and instead would simply cut them off from an essential forum for communication. And practically speaking, such a policy would be next to impossible to enforce.

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School Forced to Defend Removal of Student Posters Referencing Website Containing Links to Violent Videos

Last week a Massachusetts district court rejected a school district's effort to dismiss a novel student speech case, Bowler v. Town of Hudson, in which school administrators removed the Hudson High School Conservative Club's posters advertising its first meeting because the posters contained the website address for the club's national organization, which in turn contained a link to graphic videos on another site that depicted beheadings in Iraq.

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U.S. Supreme Court Limits Student Speech Rights

The Supreme Court has once again cut away at student speech rights. In its recent decision Morse v. Frederick, the Court held that a high school did not violate the First Amendment when it suspended a student for displaying a 14-foot banner proclaiming "Bong Hits for Jesus" during an Olympic torch parade.

In Morse, the Court declares that public schools can censor speech relating to activities "illegal to minors." In addition, and perhaps most importantly, the Court holds it is appropriate to defer to school administrators' "reasonable" interpretations of what the speech at issue means. Chief Justice Roberts, joined by four other justices, concludes that although the banner's message was offensive to some and merely cryptic or amusing to others, it was reasonable for the principal to conclude that the statement "bong hits for Jesus" promoted illegal drug use.

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Massachusetts S.J.C. Denies Boston Herald's Motion for Reconsideration of Judge Murphy Libel Decision

Yesterday Massachusetts' highest court rejected the Boston Herald's motion to reconsider its decision in a defamation case brought by Judge Ernest Murphy.  A month ago the Massachusetts Supreme Judicial Court had voted unanimously to affirm a $2.1 million jury verdict against the Boston Herald for its publication of a story in which it quoted Superior Court Judge Ernes

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Pediatrician Settles Case After His Anonymous Blogging Is Revealed

The Boston Globe reported today that a pediatrician settled a medical malpractice case in the middle of trial when opposing counsel revealed that she had discovered the doctor's anonymous blog in which he had provided "unvarnished" commentary on the lawyers, jurors, and defense strategy of his case.

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Islamic Society of Boston Drops Libel Suit

The Islamic Society of Boston has dropped its lawsuit against 16 defendants - including The Boston Herald and Fox 25-TV - for allegedly defaming the organization by linking it to terrorist groups.  According to the Boston Globe:

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Court Refuses to Enjoin School From Suspending Student Over YouTube Video

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.

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