Student’s Online Speech is Protected by the First Amendment

PEMBROKE PINES, Fla. — A student who set up a Facebook page to complain about her teacher – and was later suspended – had every right to do so under the First Amendment, a federal magistrate has ruled.

The ruling not only allows Katherine “Katie” Evans’ suit against the principal to move forward, it could set a precedent in cases involving speech and social networking on the Internet, experts say.

The courts are in the early stages of exploring the limits of free speech within social networking, said Howard Simon, the executive director of the Florida ACLU, which filed the suit on Evans’ behalf.

“It’s one of the main things that we wanted to establish in this case, that the First Amendment has a life in the social networking technology as it applies to the Internet and other forms of communication,” Simon said.

In 2007, Evans, then a senior at Pembroke Pines Charter High School, created a Facebook page where she vented about “the worst teacher I’ve ever met.”

But instead of other students expressing their dislike of the teacher, most defended the teacher and attacked Evans.

A couple days later, Evans took the page down.

But after Principal Peter Bayer found out about it, he bumped Evan from her Advanced Placement classes, putting her in classes with less prestige, and suspended her for three days.

In late 2008, Evans filed suit against the principal, asking that the suspension be ruled unconstitutional and reversed, that the documents be removed from her file at the school and that she receive reimbursement for attorney fees.

Evans, an honors student, was concerned that the suspension would tarnish her academic record and hurt her chances in graduate school and her career.

Bayer tried to get the case dismissed and asked for immunity against paying damages.

In a ruling on Friday, Magistrate Judge Barry Garber declined Bayer’s request to toss the case and said the principal could be forced to pay up if Evans, now 19 and a journalism student at the University of Florida, is victorious.

“Evans’ speech falls under the wide umbrella of protected speech,” Garber wrote. “It was an opinion of a student about a teacher, that was published off-campus, did not cause any disruption on-campus, and was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior.”

The judge also noted that the principal suspended Evans two months after she had taken the page down.

“In short, the potential spark of disruption had sputtered out, and all that remained was the opportunity to punish,” Garber wrote.

The judge dismissed the student’s request to force Bayer to purge the records of her suspension, but gave her the opportunity to amend her complaint and make the demand of the right parties.

Bayer could not be reached for comment Monday. Pembroke Pines City Manager Charlie Dodge, who oversees the city’s charter school system, declined to comment on the lawsuit.

Matthew D. Bavaro, who filed the suit with the American Civil Liberties Union on Evans’ behalf, said the case helps clarify when schools can punish students for speech that doesn’t take place at school.

“These days, things are done on the Internet. Socialization is done on the Internet,” he said. “So the law needs to adapt and we need precedent on how courts are going to apply First Amendment principles for off-campus speech.”

He said he believes the ruling “seems like a pretty strong signal” of where the case will go.

While the suit is far from resolved, legal experts say it is an important case.

“I think there has been too great a tendency in recent years for public school officials to sort of reach beyond the classroom, reach beyond the school campus very often to try to regulate or punish free speech by students in the name of protecting order,” said Sam Terilli, a media law and ethics professor at the University of Miami. “While we can all understand that, post-Columbine, there are limits.”

But Terilli added: “If a student is using or any other medium to threaten or even imply threats of violence, that’s a different matter.”

By Hannah Sampson at Miami Herald Writer