Because 'We' Post on Blogs...

I thought this was interesting, especially since as a class we all post on our blogs for school and this was a University that was punishing a student for her blog postings. It really affects me because I write stories about WSU and am somewhat critical.

Nina Yoder was a nursing student at the University of Louisville in Kentucky. On March 2, 2009 the school dismissed Yoder stating that she had violated the school’s honor code by “posting blog items concerning patients activities and naming the university on her MySpace page” (Associated Press, 2009). Yoder’s attorney, Daniel Canon, is arguing that the postings were mostly political and did not identify patients. The nursing student’s blog covered topics including suicide, religion, sex, guns and politics. “She mentioned the university several times but revealed no patient names in postings” (Associated, 2009). The University of Louisville told Yoder she could not continue in the nursing program because of her blog posts. As a result, the University labeled Yoda as a “persona non grata”, literally “an unwelcome person” and was immediately withdrawn from classes.

Yoder appealed to U.S. District Judge Charles Simpson on March 13, 2009. She asked the court to issue an injunction that would allow her to return to classes and graduate in August. A hearing has not yet been scheduled to hear Yoder’s motion. Yoder’s case mirrors a national trend among colleges and universities seeking to exercise some control over what students are able to do and say off campus and on the Internet. “Students at universities around the country, including high-profile cases in Georgia and Colorado, have faced disciplinary action for their online postings” (Associated, 2009).

Yoder’s attorney, Daniel Canon, argues that his client’s right to freedom of speech and freedom of expression, as granted by the First Amendment, has been violated by the University of Louisville. All nursing students at the University of Louisville sign an honor code that states, “[all students must adhere to] the highest standards of honesty, integrity, accountability, confidentiality, and professionalism” (Associated, 2009). Though Yoder had signed this document, Canon argues, “Public institutions can’t restrict speech. [The honor code is] too vague and regardless of the code any attempts to limit student speech are unconstitutional” (Bullard, 2009). In addition, while Yoder was granted the right to appeal her dismissal, which was denied, she was offered no hearing to present evidence and witnesses in her defense.

In Tinker v. Des Moines School District, 393 U.S. 502 (1969), the Supreme Court upheld the right of students to express their views in a quiet, symbolic manner that is non-disruptive to the educational process. Three high school students wore black armbands to school to protest American involvement in Vietnam. This act violated a recently adopted Des Moines, Iowa school district policy against such expression. As a result, the three students were suspended from school. The federal district court and the court of appeals found in favor of the school district. The lower court decision was reversed by the Supreme Court. In the majority opinion written by Justice Fortas states, “conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech” (Tedford and Herbeck, 2005).

According to the Tinker decision, Yoder should be allowed to return to school and graduate in August. Yoder’s MySpace blog posed no disruptions to the classroom environment. In addition, the blog posts were a form of political expression conducted in a non-disruptive manner according to time, place, and manner restrictions and should therefore be protected by the First Amendment.

Lacking many traditional barriers, the Internet has rapidly become a medium for a wide range of expression. Unlike traditional media outlets, the Internet has no gatekeepers. Because of this, it has become a forum for political speech and individual expression. In the Telecommunications Act of 1996, Congress included a provision known as the Communication Decency Act (CDA). The CDA contained two provisions that were aimed at protecting minors from “indecent” and “patently offensive” communications on the Internet. Several plaintiffs, including the American Civil Liberties Union (ACLU), filed suit challenging the constitutionality of the CDA. In 1996, a special three-judge court panel unanimously declared the CDA unconstitutional (ACLU v. Reno, 929 F.Supp. 824 (E.D. Pa. 1996)). They argued that the law was inherently vague because “indecent” was not defined in the law and it prohibited speech that was legal for adults. The government then appealed to the Supreme Court, which held that the CDA was unconstitutional. This was the Supreme Court’s first decision on free speech in cyberspace.

The Supreme Court held that the CDA did indeed violate the First Amendment. Furthermore, they held that Internet speech was entitled to the highest degree of First Amendment protection. Due to the Supreme Court’s decision in Reno v. ACLU, it would be argued that Yoder’s MySpace blog does indeed enjoy First Amendment protection because speech found on the Internet is constitutionally protected. This is further compounded by the fact that political speech is constitutionally protected as long as it does not violate time, place and manner restrictions as annunciated in Hague v. CIO (1939), Schneider v. State (1939), Cox v. New Hampshire (1941) and Jamison v. Texas (1943). Yoder’s MySpace blog was created privately as a tool to release stress and it did not disrupt the education environment.

In United States v. Baker, 890 F.Supp. 1375 (E.D. Mich. 1995), a student at the University of Michigan posted a graphic narrative on a website which described the torture, rape and murder of a woman. In another story, the victim had the same name as one of the student’s classmates. A grand jury indicted the student for violating a statute that prohibited interstate communication of threats to injure or kidnap an individual. Baker’s attorney argued that the threats were not “true threats” and were therefore protected expression. Federal district judge Avern Cohn argued, “statements expressing musings, considerations of what it would be like to kidnap or injure someone, however unsavory, are not constitutionally actionable… absent some expression of an intent to commit the injury or kidnapping” (Tedford, 2005).

Based on the Baker decision, Yoder should be allowed to resume classes at the University of Louisville. The University of Louisville administration cited the gun-related postings as a reason for her dismissal. Yoder was merely expressing her opinions regarding gun-rights and posed no true threat to university administrators, teachers or students. Therefore, Yoder’s should be reinstated to the university’s nursing program.