Role of Cyber Speech and First Amendment
The Internet has transformed communication throughout the world, allowing people to share information instantaneously at relatively low cost. The Internet is regarded as the most participatory form of mass speech ever developed in the world and it is the main channel of communication that is behind the development of cyber communication. Students in schools and colleges communicate amongst themselves through social sites such as Facebook and Twitter. They can receive first-hand information that has not even reach their school administration. More often, students use these sites to express their feelings about politics, school administration, and relationships. Most of them express their feelings on their partners on the Internet when they break up or are dissatisfied in their relationship. Many learning institutions have developed user accounts to enhance faster and affordable communication among the students and the school officials. The school administration also keeps the students’ details online, where students can access their fees’ details and their course materials at various locations within the campus or off-campus.
However, cyber-speech also has its negative side. In the United States, the student Internet speech is filled with numerous controversies that are regarded as the premier First Amendment battleground. First Amendment aims at protecting the rights of a student to speech while at the same time having Internet filtering in the public libraries and schools. Students speech on the Internet while they are off-campus is a becoming a great concern to public school officials in the US. Students and parents have claimed that First Amendment violations happen when school administration punish students for their speech occurring away from the campus on the Internet using a personal computer and personal Internet connections (Gibbs, 2010).
Nevertheless, courts vary on the interpretation and the appropriate judgments in the cases of off-campus student cyber speech since no particular U.S. Supreme Court ruling governs the question. Several cases of some students posting defamatory messages against their school officials have been recorded in several courts in the United States, but ended up being terminated prematurely.
In the first case involving First Amendment rights on school grounds, Tinker vs. Des Moines (Hudson, 2002), the court upheld the freedom of speech after their school administration suspended them. In this case the court rightfully stated that “[] students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.” The following wordings as “that are officially approved” and “in the absence of constitutionally valid reasons” create a certain limit to the freedom of speech and allow the courts to regulate this issue in the future and protects those who are abused by the free speech of another. Accordingly, in this case Rick’s freedom of expression violated Amy’s right to privacy and dignity, and in general, it seems according to the information provided that women in general were embarrassed and abused, which means that the Rick’s freedom of speech violated the public order in university society and not limited to it. In any event, we should not forget the saying that “your liberty to swing your fist ends just where my nose begins”. It means that one should not use his right to abuse the other and all the rights have certain limitations as long as we, people in general, are living in community and need to respect each other’s rights. Hence, it is reasonable to suggest that the role of the freedom of cyber speech and the first amendment is important, however, it should never be used opportunistically in a way that violates the other person’s rights.
The courts, school administrators, and legal scholars have been put to task to re-examine the notion of students’ rights to freedom of speech entitled by the nearly a half-century of First Amendment jurisprudence in the modern Internet and bullying age. In recent studies (Hudson, 2002) academic misconduct by college students, mainly cheating and plagiarizing, has significantly increased since the beginning of the 21-st century. Since the sanctions for an academic misconduct may be severe (expulsion, suspension or a student's transcript of an academic integrity violation), the incentive for students to challenge these sanctions imposed on them is essential.
2 Sexual Harassment in the Dispute
In the case of Rick Beach, who is a senior history major, and Amy Lynn Jensen, Rick’s ex-girlfriend, and also, a junior political science major sexual assaults Lynn by posting his feeling when they broke up. Rick and Amy are both students at a large State University, which falls under the First Amendment jurisdiction. The broke-up devastated and confused Rick, who ended up creating a Web page that he would use to express his feelings about Lynn and their relationship. Rick, a regular user of the university resources, used his school account with his password to establish the Web page. He could also access other pages using the page. After sometime, Lynn and other female students wrote to the Dean of Students about the page, that it undermines women, and it should be shut down. By posting his feelings to his web page which is accessed by many people, Rick emotionally affects Lynn. According to (Milo, 2010), the United Nations categorizes women criticism on the Internet as cyber violence against women. This also involves calling women liars or sucks and always posting hate videos that attack them. A UN report on gender-based violence on women includes an attempt to recognize a cyber-touch as equally damaging as to physical touch. The report considers cyber-violence to affect women physiologically.
Moreover, Rick has broken his University written policy on computer use on its members of the academic community, the university student set code of conduct and the way in which the University resources are to be used. University resources may be only used for learning, research and communications and not sending hoax messages or any activity that violates the State’s and the University’s policy as in the case of Rick. The University took a long time to respond to Lynn’s claim and kept the web page online for quite some time instead of deleting it. Lynn being a woman shows that the university discriminates the female students.
3 Title IX Issues
This is against the Federal Title IX right that that prohibits sex discrimination in education. Title IX Education Amendments must be complied by all the public and private and secondary schools, colleges, and universities (Mink, 2008). Title IX issue exist where the Dean is taking time to respond to the Lynn’s request to bring down the Rick’s post. The Dean decides to assistance from the Director of Computer and Technology Services which takes a long time; hence defaming Lynn. More over there is non-existence of specific measures put in place by the university to reduce the cases of sexual harassment among the members of the school community. This is against the Federal Title IX rules.
4 Suggestions for Dispute Resolution
The Rick and Lynn’s dispute show clearly that the learning institutions in the US lack an agreed standard to discipline students who engages in hate speech. Most students who are involved in disputes then to seek support from their parents and legal institutions. One way of solving the Rick and Lynn’s dispute is through mediation to enable them to reconcile. The mediator should be a third party person such as the Dean or the any person from the student leadership. This could be the best way to bring together the two former friends. It is also less expensive than legal methods. Rick should be urged to bring down the post and seek forgiveness from Lynn. Another way of solving the conflict is requesting Rick to compensate Lynn for defaming her through the post. Compensation should in from of money or Rick make another post about Lynn that contrast the previous one. What is coming out on this, is that the university lacks a tight policy on any student who breaks the state university policy on responsible computer use and the extent to which the University computer and network resources may be utilized. Mediation was the best solution to be used to reconcile the two parties.
5 Suggestions for Institutional Policy Changes
Learning institutions should be quick in adopting changes in the modern technology. The university should be moving with similar phase as the students to implement the new technologies in its facilities. Cyber-bullies are changing the trend and are currently opting for chat rooms, blogs, text messaging and emails to spread derogatory and defamatory comments about other students, teachers and other individuals (Brown et al., 2006). Therefore, the university should set up strict measures on any cross-misconduct among the students. One of the measure which can be implemented is the creation of a firewall which will protect all the users in the network. The firewall will sieve defamatory messages and posts directed to particular individuals in the university. Another measure which can be put in place is website is the introduction punitive measures such as suspension and expulsion of incorrigible students who have numerous cases of indiscipline. Also, it is more prudent for the university to conduct mediation to solve minor cases of indiscipline arising from the students.
6 Law Annotation and Citation
Chapter 127 of the First Amendment says: The public schools shall need to bear with students’ speech, and the school administrators are required to premise censorship on likely distortive effects of this. For example, a teacher can punish a student in class for lateness, but have limited authority to punish a student for faulting a school official off-campus. Such cases contribute to the rowdy behavior of students while in the campus. The Federal rules on the student Internet speech should be aligned with the school rules so as to control communications among the students. The school officials should be given authority to discipline the students while off-campus so as to nurture respect in the school community. There have been numerous cases in the Supreme Court of the United States relating to sexual discrimination in learning institutions. An example of these cases is Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992. In this case, Franklin, a high school student had filed a case of sexual harassment and abuse by his teacher. The teacher later resigned but the Supreme Court upheld the Title IX regulations that the required the student to be compensated by the teacher for the damages.
7 If I were a Vice President
The policy issues: In this case, as long as there is a disclaimer the university may not be responsible for what Rick has done on the network using the university computers. However, there is an external inherent risk to the reputation of the university and more important internal risk of losing students’ trust, because inability of the university to protect its own students from the wrongdoers within the university. In other words, in our case the student used the facilities of the university to abuse the other students. This poses an important policy issue based on which the university may file a claim against Rick to the court, because this action violates the public order of the university.
The strategies to use with Rick and his attorney should be negotiation oriented at first, meaning that the Dean could gently talk to Rick and understand his interest and goals in this issue. Then dean can suggest and explain that this action violates a number of rights and poses serious issues to the university.
However, if it does not work, then the university should as possible conduct a litigation risk analysis and show to Rick that this case may result in judicial proceeding caused either by the university or by Amy in any case and this may result in serious losses and time expenditures.
8 Suggestions to take if Dispute is not resolved
If the dispute is not resolved between Lynn and Rick on the meeting with the Dean of Students, the university should suggest the mediation as it was planned. If they are providing mediation services within the university community and there are specialists for it, then this would be the best option.
9 Dispute Resolution for a Private University
Recommendation may be different on the basis of the policies that are implemented by the university. Private universities are usually stronger in position as they stand not as governmental service providers with certain obligations, but as a private party, who may require anything from the ones who are in need for the services they are providing. Hence, the contract students are signing may contain more obligations and sanctions rather than state universities and dispute resolution mechanisms may be limited to those that most beneficial for the university. Here the reputation aspect would be extremely important for the private university and hence it may sanction the student in a more serious way than the state one. Private university may restrict the dispute resolution to mandatory mediation, arbitration and make the decision imposed by arbitrators final and non-appealable.
References
Brown, K. Margaret, J. & Wand, C. (2006). “Cyber-bullying.” Canadian Journal of Educational
Administration and Policy Making. Issue #57, December 18, 2006: CJEAP and the author(s)
Hudson, D. (2002). “Cyber Speech.” First Amendment Scholar.K-12 Public School Student
Expression: Tuesday, April 9, 2002
Gibbs, J. (2010). “Student Speech on the Internet: The Role of First Amendment Protections.”
Law & Society. Series: Law and Society: Recent Scholarship. October 2010. Pg. 978-1-
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Milo, P. (2005). “The UN Censor on the Entire Internet to Save Feminists’ Feelings.” The Big
Government: Print. 25 Sep 2015
Mink, P. (2008). “Title IX - The Nine.” American Civil Liberties Union (ACLU): Print.
September 2008.Pg 16-39
Tinker v. Des Moines Independent Community School Dist. 393 U.S. 503, 1969.
