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Court: There's No First Amendment Exception In MySpace

from the free-as-in-speech dept

Tue, Apr 10th 2007 1:14pm — Joseph Weisenthal

Just in case there was any confusion about the matter, a court in Indiana has ruled that the First Amendment applies inside of MySpace just as it does everywhere else. Apparently there was actually some debate about this seemingly obvious question after a court gave a middle school student probation for posting an "expletive-laden" critique of her school's policies on MySpace. In reversing that sentence, the appellate court noted its abhorrence of the student's language, but agreed nonetheless that it was protected. It's really hard to fathom the initial court's reasoning. There's nothing in the law to suggest that students have any less of a right to free speech than anyone else, and there's no reason to think that postings on MySpace would make things any different. However, even though the law is settled on this issue, it's likely that schools and will continue to go after students, only to be slapped down by higher courts

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18 Comments

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RandomThoughts, 10 Apr 2007 @ 1:32pm

Of course, she posted that "free speech" posing as the principal, making it look like it was actually his MySpace page.

There should be something illegal with that. Seems to me to be a case of identity theft.
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Sanguine Dream, 10 Apr 2007 @ 1:55pm

Hold on...
While agree that it is free speech was someone impersonating that principal?

If that principal had been smart he would have gone after the impersonation instead of what was said.
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Mike M., 10 Apr 2007 @ 1:56pm

"There's nothing in the law to suggest that students have any less of a right to free speech than anyone else..."

That is not exactly true. On school grounds and in school newspapers, speech has been and continues to be legally regulated.

Depending upon the grounds on which the probationer ordered by the juvenile court was based, I think it possible that the appeals court got it wrong here.

If the juvenile court based it's probation upon the acts of posting under the identity of another, then I think the appeals court is completely off. However, the more likely scenario is that the juvenile court based its probation order on the content of the my space page.

"Free" speech does not mean that one is permitted to do anything and everything in the name of political commentary. There are boundaries.

We should not forget that with rights come responsibilities.
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Beefcake, 10 Apr 2007 @ 2:26pm

"The constitution guarantees us the right to free speech. It does not, however, guarantee us immunity from the consequences of an ill-advised exercise of that right."

Don't know who said it, but it holds plenty of water.
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Wyndle, 10 Apr 2007 @ 3:00pm

Free Speech?
The "free speech laws" are not meant to apply to this situation in this manner. First and foremost it was defamation of character by impersonation, which is NOT protected under the First Amendment. On top of that it is wire fraud, not speech. This kid has stepped over the line and the courts are all confuzzled over what the base issue is.
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Casper, 10 Apr 2007 @ 3:18pm

Re: Free Speech?
"The "free speech laws" are not meant to apply to this situation in this manner. First and foremost it was defamation of character by impersonation, which is NOT protected under the First Amendment. On top of that it is wire fraud, not speech. This kid has stepped over the line and the courts are all confuzzled over what the base issue is.'

Everyone is. What is the defining characteristic of this case that shows it to be impersonation rather then parody? If it's taken in the context of parody, then it is protected under free speech and the student can mock the principal all they want. In order for it to have been impersonation they have to be attempting to pass themselves off as that person. As it stands, creating a false profile of someone is not impersonation because at no point did you identify your self as that person. It would be no different then mocking up an obituary or deriving an insulting character from the real person.

There really are not clear lines here, but I have to lean toward parody for the fact that it has a stronger case then impersonation. Now, if those students were going around and telling people they were the principal or signing documents as him, that would be a different story.
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PhysicsGuy, 10 Apr 2007 @ 3:56pm

not being a lawyer, i'd say this definitely falls under free speech. i fail to see the difference between pretending to be someone and giving commentary on one medium (television) and doing so on another (myspace).
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An Elder, 10 Apr 2007 @ 3:59pm

Society out of control
It should have never gotton that far. 'Way too many parents have abrogated their resposibilites and loaded them onto the schools. And, then, when they disagree with the decision the school makes, they try to rake them over the coals. Kind of a perversion of having their cake and wanting to eat it, too. I agree with the many of the comments above. When the amendments were forged by our forefathers, they were very aware that empowering individual freedoms as government-sanctioned priveledges also burderdened the individual with responsibilities. If a person isn't willing to be held accountable for distasteful and reprehensable behavior, then our society's freedoms aren't worth a hill of beans.
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off topic, 10 Apr 2007 @ 4:19pm

Re: Society out of control
Dude, I know it's an old cliche, but why in the hell would you want to have a cake and not eat it? Isn't the main purpose of cake to be eaten? Well, that or hilarious pratfalls involving someone's face.
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Charles Griswold, 10 Apr 2007 @ 6:28pm

Re: Re: Society out of control
Dude, I know it's an old cliche, but why in the hell would you want to have a cake and not eat it?
"To have your cake and eat it too" is a corruption of an old cliché, "to eat your cake and have it too". It makes more sense in the original form.
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Charles Griswold, 10 Apr 2007 @ 6:41pm

Re: Free Speech
It's a common misconception that "free speech" means that you can say anything you want without repercussions. This is not the case. Free speech is specifically meant to protect political speech; protection of other types of speech is merely a side-effect (although an important side-effect) of the protection of political speech.

"Free speech" specifically does not protect several forms of speech. Falsely shouting "FIRE!" in a crowded theater is the canonical example of one type of speech that is not protected, since it can cause harm to, or even kill, innocent people.

Slander (lies that damage someone's reputation) are also not protected. If you say something true that damages someone's reputation, or if you indicate that what you are saying is merely opinion, you're OK, but if you actually lie, you are legally liable. For instance, if you call someone a dumbass, you're probably OK since that is commonly understood to be an expression of opinion. If you say that someone has conjugal relations with goats, when if fact they don't, then you can get your derrière in a sling over it.

Since I haven't in fact seen the MySpace page in question, I have no idea whether the comments would be protected speech or not.
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Bill, 10 Apr 2007 @ 7:28pm

She's not protected...
It's not; She's a minor. The US Constitution as opinionated by the Supreme Court has been noted as being a "Social Contract", and since she is not of legal age to enter into any type of contractual agreement of any sort until she reaches the day of her 18th birthday she does not have equal protection under the United States constitution. Well how can that be? I didn't sign anything; this is true you didn't and you didn't have to when the Constitution was drafted over 200 years ago, elected representatives that were representing the "people" signed on your behalf. So this leads to point number two; since she's not contractually protected by the contents of the constitution and she is a minor the burden of her actions fall square on the shoulders of her parent(s) or legal guardian; What the principle should have done is find out first hand of what was posted on the page did in fact damage his character and if he could prove that it had he could take the minor's parent(s) or legal guardian to a civil court and sue them for defamation of character.
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off topic, 10 Apr 2007 @ 8:02pm

Re: Re: Re: Society out of control
Oh, thanks. That does make much more sense.
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|333173|3|_||3, 10 Apr 2007 @ 8:07pm

Confusion
Some people appear to be confused about this article. THis is not a follow up to the one which appeared yeaterday about the boy who posted a MySpace prrfile under his principals name, but rather about a girl who found a MySpcae profile under the name of her princilpal (from a different schoool), and who posted an expletive-laden flame about the piecings policy as a message. The message is clearly from someone else, even if anyone were stupid enough to believe that the profile were by the principla in question, so she should be fine. even if not protected by Free speech, there was no identiy fraud or identity theft. If she posted under a flase, anem, then that should be fine too, after all, no-one would beileive I am Beelzebub just because I say so.
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James, 11 Apr 2007 @ 6:23am

Uh, Hello McFly
Thank you! Finally someone realizing that his is the same case where the kids made fake profiles pretending to be the school principal. This case has nothing to do with that one. Those were high school students. This one is a middle school student. All she did was post a message about the school policies, albeit in a profane manner. She is protected by free speech in this case.
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BTR1701, 11 Apr 2007 @ 6:48am

Re: Free Speech?
> The "free speech laws" are not meant
> to apply to this situation in this manner.

The "free speech laws" you mention is actually Amendment 1 to the U.S. Constitution. A bit more significant than just some statute.

> First and foremost it was defamation
> of character by impersonation, which
> is NOT protected under the First
> Amendment.

True, defamation is not protected but then neither is it a criminal offense. This girl should not be given probation over an incident of defamation. If what she did was truly defamtory, then the principal would have a civil cause of action against her and could recover damages. But in no instance should a person be imprisoned (or given probation in lieu of prison) for defamation.

> On top of that it is wire fraud, not speech.

No, it's not. What she did does not meet the elements of any kind of fraud, wire or otherwise. Mere lying does not constitute fraud. Lying is just one aspect of fraud. There has to be some pecuniary gain associated with the lying before a fraud offense is complete and by all reports, that was not the case here.
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Heather, 8 May 2007 @ 9:17am

Wrong Court
OMG, is everyone oblivious? The real crime here is one actually being fought in Juneau Alaska, and likely SHOULD be fought in other places. She did something off school grounds, not on a school sponsored function, on her own time, yet the SCHOOL feels they have the legal right to punish her? Perhaps every time my kid doesn't eat his peas the school would like to step in then too? The schools complain that we expect them to be babysitters for us, but then they go stepping in regarding things happening off school property/events or schedules?

The school was ridiculously out of line trying to punish a student for something they did at HOME! The school should be punished for trying to extend their control beyond that of the student handbook. If they tried to pull a stunt like that on my daughter (who is way too classy for that garbage anyway) I would have one fabulous lawyer on that school so fast they would be shut down and students would have to bus to a far away town just to get an education. I can't believe that the lawyer did not make THAT the case, instead of this ridiculous nonsense about free speech. Nobody underage has any legal rights to free speech or anything else in the constitution.

So we have two groups of lawyers, screwed up, parents screwed up, child screwed up, JUDGES screwed up, and of course, the school screwed up (no real suprise there). And folks wonder what is wrong with the legal system? Isn't it obvious now?
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george, 27 May 2007 @ 6:36am

Re:
ID theft and ID deception are very different. The principles ID was not stolen, the student did not go around saying they were him, they simply created a web page with his name...big difference. The ID deception and theft laws are there to protect and enforce against people stealing your ID and obtaining credit, bank account access, or otherwise serious harm, not to enforce a tasteless practical joke. It is a sad day when our government makes it a felony to speak your mind and play bad jokes...
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