A couple of recent local cases of social media missteps have made clear the new landscape upon which the First Amendment right to free speech will be tested. It demands a closer look at a broad problem without easy answers.
The most recent case involves a student at West Seneca East High School who was ejected from the West Seneca Town Ice Rink for rowdy behavior during a game against crosstown rival West Seneca West.
In response, the student, senior Brandon Guzda, tweeted “[Expletive] mrs. [name withheld] #freedomofspeech like come on why did u do that!”
Brandon got the max – a five-day suspension – allowed by state education law without a formal superintendent’s hearing. And he got a lot of attention from the media and support from classmates.
In the other case, this time involving the workplace, employees at Hispanics United found themselves in the middle of a social media storm when one co-worker used Facebook to complain about another.
“Lydia Cruz, a coworker, feels that we don’t help our clients enough at HUB,” Mariana Cole-Rivera wrote on Facebook Oct. 9, 2010. “I about had it! My fellow coworkers how do u feel?”
Several co-workers chimed in with their responses and, as a result, Cole-Rivera and four others were fired. They filed a complaint with the National Labor Relations Board and last December won their case. But that may not stick because President Obama’s appointments to the labor board have been challenged.
The lesson of both stories is that social media have forever changed the way we communicate and that communications that once were private and little-noticed are now capable of creating a firestorm.
While the student’s tweet was certainly crude and insulting, West Seneca school officials may have overreacted, because students do have First Amendment rights. Attorney Barry N. Covert, with Lipsitz Green Scime Cambria LLP, recognizes that the student should not have tweeted out his angry message. But the Supreme Court ruled in favor of students in Tinker v. Des Moines in 1969. The decision upheld the right of students to wear black armbands in school to protest the Vietnam War as protected speech.
The Supreme Court has said the First Amendment rights of students are not unlimited. Schools are allowed to take action to protect security and prevent school from being disrupted. But students’ First Amendment rights are strong and schools must show a serious breach in their ability to function. It hardly seems that Guzda’s rude tweet made away from school rises to that level.
The explosion in social media has created many problems this and the next generation will have to figure out. Freedom of speech does not make someone immune to the consequences of a rude comment. Something said in a flash of anger may turn up years later when a university or employer looks into the background of an applicant.
Today’s version of schoolyard or workplace insults is a tweet or Facebook message that can be heard around the virtual world instantly and that will last forever.
The moral applies to both students and adults: Think before acting impulsively.