A few years back, I took a pretty strong stance for student online speech in the Avery Doninger case where it occurred off campus and was related to a matter of public concern – in particular urging people to contact the district about a decision to cancel a school event. I believe I was right then, and that eventually the courts will catch up with the development of the internet.

I have to be honest – I’m finding myself concerned about this vague report coming out of Cranston, Rhode Island, where a dispute (and court case) over a prayer banner at Cranston West High School has now led to a student from another school in the district facing discipline for online comments made regarding the plaintiff in the case.

A Cranston high school student has been disciplined for online comments against a fellow student who sued the School Department to remove a prayer banner at the school, said Ray L. Votto Jr., the district's chief operating officer.

The student faced internal discipline, Votto said, typically a form of detention.

Now let’s be honest – it really isn’t clear about what this kid wrote online or where he wrote it. I’ve seen a reference to particularly vile comments made by someone online, but I am unsure whether or not any of these comments are related back to the student disciplined by the district. The discipline seems to be related to the district’s bullying policy.

Now here is where my concern kicks in. Given that the student in question has become a party to litigation and revealed her identity publicly, it is hard to argue that she is not a public figure as it relates to the issue of the disputed banner. Posts and comments related to the matter, as well as statements made to the litigious student away from school, are related to a matter of public concern. What business does the school have taking any action on this matter? It appears to me that we are looking at speech that is clearly protected by the First Amendment.

Now some may object that we are dealing with threats and harassment. To the extent that there are true threats being made and /or actual harassment as defined by relevant criminal statutes, those are still not a matter for the school to deal with when it occurs off campus. At such a point, it becomes a matter for law enforcement to deal with, and proper criminal charges should filed and adjudicated in the courts. And if there isn’t a criminal violation, it is fundamentally inappropriate to shunt such off-campus speech about a matter of public concern to the schools, which operate with a much lower burden of proof and significantly less due process. The Supreme Court noted over 40 years ago that students do not shed their speech rights at the schoolhouse gate – it is therefore axiomatic that the schools cannot be used to suppress and punish student speech away from the campus, either.

Now some might think that I’m saying this because the student in question is presumably some sort of Christian and the target of the ugly speech is an atheist. I’m not. Indeed, I actually agree with the atheist student, Jessica Ahlquist, that the banner was not appropriate for a public school, and I think that the words of many of her critics are immoral and antithetical to the spirit of Christianity. But just as I think that Jessica’s right to challenge the banner is fully protected under the First Amendment, I also believe that the students who disagree with her are generally within their rights to express their opposition to her lawsuit and the outcome of it, to criticize (even revile) her religious beliefs, and to express their own beliefs as to what the afterlife holds for those who they see as the enemies of God while they are away from school.

By the way, I’d like to acknowledge that I’m tempering this post a little bit for family reasons – indeed, the whole reason I didn’t write on the court case at an earlier was because of those connections. My mom grew up in Cranston. I have lots of family living there to this day. Many of the younger generation attend the Cranston public schools. At least one cousin teaches for the district. Another, now deceased, was a long-time teacher and coach at the school in question and a beloved figure in the community. I don’t know where various family members stand on the issue of the prayer banner, nor do I know if any of them have spoken publicly or online about the matter. But I think the broader speech issue, as opposed to the more narrow issue of the prayer banner, is one that I can write on without causing too much strife.