Free Speech and MySpace

April 12, 2007 | | 5 Comments

Our Office of Career Services has told us repeatedly to Google our names and see what comes up. They say employers are doing the same thing to research potential associates before they are even interviewed. But according to recent news, all students need to be careful what their names are associated with. A middle school principal in Indiana was alerted by some of his students that an unknown person had created a MySpace.com page under his name and written a slew of cuss words peppered with violent threats. If you’d like to read the explicit text, check out the case (B. v. Indiana, 2007 Ind. App. LEXIS 694, 3 (Ct. App. IN 2007)).

The principal reported his findings to the local juvenile court, which instituted a delinquency petition. The prosecution alleged that if committed by an adult, the student’s actions would have amounted to identity deception, a Class C felony, and harassment, a Class B misdemeanor. Even after dropping most of the charges, including the felony offense, the student was found to be “delinquent” under an Indiana harassment statute, and was placed on nine months of probation.

On Monday, the Court of Appeals of Indiana set aside the verdict, and held that the first amendment extends to comments on MySpace.com. In the opinion, the court said that “While we have little regard for A.B.’s use of vulgar epithets, we conclude that her overall message constitutes political speech. Addressing a state actor, the thrust of A.B.’s expression focuses on explicitly opposing Gobert’s action in enforcing a certain school policy.” A.B. v. Indiana, 2007 Ind. App. LEXIS 694, 13 (Ct. App. IN 2007). And because there was no evidence that this political speech caused damage that would otherwise provide the basis for a tortious action, the statute and sentence of probation were held to be unconstitutional.

The internet has affected the way our society interacts in numerous ways. And along with the positive, negative messages have no trouble finding their way along the information superhighway. This means that our legal system must now find a way to incorporate the new technology into our existing legal framework. Here, instead of focusing on the differences between speech that is spoken, written, or placed on the internet, the court was able to look beyond the use of the internet, and focused directly on the harassment statute. The statute at issue did include using “a computer network or other form of electronic communication” as a potential means of harassment, but I think this opinion will have impact more than the debate about harassment as it relates to free speech.

As more of our communication takes place online, whether through the World Wide Web or e-mail, our laws must also change to take this into account. I did a simple search on Lexis.com for internet and free speech. The majority of cases returned concerned whether legislatures can require companies broadcasting “adult material” on the internet to verify age before allowing surfers to access their site. Considering that pornography is rumored to be by far the most accessed material on the internet, this line of cases seems reasonable. One Supreme Court case upheld the right of public libraries to use content filtering programs on their computers. It was argued that these filters would violate the first amendment rights of public library patrons, but because libraries choose suitable printed material, allowing them to choose suitable internet material didn’t seem to be too much of a stretch for the justices. But in my brief and completely unscientific research, no case seemed to directly address the issue of whether the use of the internet as a form of communication affects the free speech rights of its user.

I had assumed, that with society’s reliance on the internet as a communication tool, that there would be more conflict between the it and free speech. Does the dearth of cases specifically addressing this issue mean that our legal system is lagging behind the times? I actually choose to see it the other way. I think it is a good sign that even with an entirely new means of communication that clearly wasn’t contemplated by the writers of our Constitution, our legal system hasn’t even missed a step.

(Photo courtesy of Flickr user dogseat

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Comments

5 Comments so far

  1. EldWoods on April 13, 2007 10:38 am

    I would have thought that the W&M ACS, being such staunch defenders of the Constitution, would spend some time addressing the free speech implications of the recent Don Imus fiasco instead of talking about MySpace.

  2. Kristen on April 13, 2007 1:04 pm

    Thanks for your comment, but there is one thing wrong with your logic. In order for there to be constitutional protections of free speech, a government actor must be involved in some way. The FCC is the only government agency I could see, but as of yet they did not direct Imus’s firing nor did they censor what he said. So absent some other agency getting invovled, I don’t see a whole lot of constitutionally protected free speech infringment.

    Further, I find the issue of how technology is affecting (or not) the free speech protections of our constitution extremely interesting. Our legal system has always struggled to adapt to changes in American culture, and the internet is the newest hurdle. I find it extremely interesting that the use of the internet for the speech in question didn’t seem to affect the judgment in any noticeable way. This is a testament to the durability of our constitution, one that I find more interesting than the non-constutituionally related stupidity of Imus.

  3. EldWoods on April 13, 2007 1:30 pm

    “The FCC is the only government agency I could see, but as of yet they did not direct Imus’s firing nor did they censor what he said. So absent some other agency getting invovled, I don’t see a whole lot of constitutionally protected free speech infringment.”

    You really don’t see how a broadcast license from the FCC can amount to State involvement? Have you taken con law yet???

  4. Kristen on April 13, 2007 1:41 pm

    Sure, if the FCC had censored or directed Imus’s firing, then we would have state involvement. If the FCC had threatened to withdraw the broadcast license as a result, then we would have state involement. But none of that happened. It’s not unconstitutional for NBC to fire somebody they disagree with, or who has brought bad press.

  5. EldWoods on April 13, 2007 2:33 pm

    Considering the line of cases over the past 40 years where state involvement has been found even in the most attenuated of circumstances, especially when race is part of the equation, I think there’s a more than reasonable argument that enough of a nexus exists to find state involvement here. If Imus has a functioning brain, he’ll get a good lawyer and take on some of the cowards who have attacked him.

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