College Student Defends Facebook First Amendment Rights and Settles With Former Principal

via Chris Kasurak

Cartoon of cyberbullying, free speech's evil tug-of-war partner.

​Where is the line between cyberbullying and free speech? If one exists, it's wide, gray, and quite cloudy, and Katherine Evans walked it for two years as she sued her former Pembroke Pines Charter High School principal for his decision to suspend her for three days for her actions on Facebook. Evans, now a journalism student at the University of Florida, will receive $15,000 in attorneys' fees and $1 in nominal damages, and the suspension will be removed from her school record in accordance with the settlement reached last week.

Evans' suspension resulted when she created a Facebook page about her AP English teacher, criticizing her as the worst teacher she ever had. Evans deleted the page two days after creating it, when three students commented in defense of the teacher. In their coverage of Evans' lawsuit, the Miami Herald and Wired mention another free-speech case in which a Pennsylvania high school senior created a MySpace profile for his principal that said he "took drugs and kept beer at his desk." Like Evans, the student sued after being suspended, saying the disciplinary measures violated his First Amendment rights. According to a federal judge, the profile did not create a "substantial disruption." The case now awaits a Third U.S. Circuit Court of Appeals ruling in Philadelphia.

The American Civil Liberties Union of Florida backed Evans' case. "We thought that her facts presented really a very good case because... in the scheme of what students have posted on the internet across the counrty, this was pretty mild," says Randall Marshall, the organization's legal director says. "If we couldn't win this case, it really would have been a dangerous precedent for student speech.

"If a school could punish a student for posting fairly benign comments about a teacher... then it's hard to imagine what the school could not regulate," Marshall says. "It would essentially say that students have no First Amendment rights." Marshall also made it clear that these constitutional rights only apply to off-campus speech of students at public schools, where principals are government employees, not at private schools.

So, if the Facebook page created by Evans is not cyberbullying, what is? According to Evans' lawyer, Matthew Bavaro, "In order to have any type of bullying, there must be some repeated course of conduct intended to harass or bully another person."

Marshall calls the definition of cyberbullying "fuzzy" but clarified what it is not: "Speech that is not clearly directed and intended to single out and intimidate and call to harm an individual." "I think without a doubt that we will see more of these kinds of cases," Marshall says, adding that it will take more litigation for more clear-cut rules to emerge.