PRE-LAW FRATERNITY HOSTS FREE SPEECH FORUM
University at Albany students came together Thursday night to discuss role of technology in the limitation of First Amendment rights.
The discussion was hosted by pre-law sorority Phi Alpha Delta and the Student Association, with Michael Grygiel, a national media lawyer as the lead speaker. Grygiel discussed four Supreme Court cases dealing with First Amendment rights in public high schools and used the principles established in these cases to analyze more recent cases involving Internet speech.
The lawyer said that recent cases such as Doninger v. Niehoff indicate a “collision between technology and change in the First Amendment.”
With this conflict, Grygiel made clear that recent court decisions have laid a path depriving public high school students of the ability to exercise free speech. The surge of Internet usage also contributes to the decline in student rights; courts have been harsher on Internet speech than they have on other speech.
The aspect of cyberspace is essential in explaining this.
“Speech on the web or in cyberspace has no fixed, finite geographical location; it’s everywhere,” Grygiel said.
As a result, it is hard to apply the material disruption test established in Tinker v. Des Moines, one of the four Supreme Court cases Grygiel analyzed in the discussion. The test holds that within the “schoolhouse gate,” the confines of public school, speech is protected if it does not disrupt the learning process.
However, the ubiquitous Internet complicates this by making the “schoolhouse gate” harder to define. What happens when students speak freely on the Internet within their home?
In Doningerv v. Niehoff a 2008 court case, Grygiel explained how Avery Doninger was a high school junior who called school officials “douchebags” in a LiveJournal post. In retaliation, the officials had cancelled an event she was planning for student council. Despite encouraging other students to complain to an administrator, Doninger was later punished by not being allowed to run for student office her senior year.
A second-circuit panel in the United States Court of Appeals ruled in this case that the school reasonably forecasted a threat to material disruption even though the only disruption was the complaining phone calls the administrator received.
As a lawyer defending the First Amendment, Grygiel holds, “The courts are getting this exactly wrong.” Grygiel explained that the courts are treating speech through digital technology differently than normal speech.
This reach of the courts into the public high school students’ rights of free speech yields a “disturbing trajectory of law,” according to Grygiel. The more courts toy with the First Amendment, the harder it becomes to draw the line between what is protected speech and what is punishable speech.
Examining the issue of restricted speech in public schools, Vice President of UAlbany’s Student Association Colin Manchester asked, “At 18 I can vote. At 21 I can grab a beer. But why at 17 can I not speak my mind?”
Manchester is a senior majoring in both the financial analyst honors program and financial marketing and regulation.
Compared to public high schools, public universities tend to offer more freedom of speech. Courts are more lenient in protecting free speech at universities because institutions of higher learning encourage the full exploration of ideas, according to Grygiel. At universities, students must be able to exercise their rights by effectively disseminating and distributing speech.
As a public university, UAlbany is a place for students to vocalize informed ideas. Last April, newspapers containing the article “Sexual Assault Reports up 200 Percent at UAlbany” by Lindsey Riback, were removed from the Lecture Center during the Accepted Student Open House.
Grygiel said that he could see a First Amendment issue here if the administration directed, supported, or endorsed the removal of the newspapers. If an individual did this independently, the issue would be different.
Nonetheless, the lawyer noted, “It’s the type of episode that clearly implies the desire to protect the reputation of the university.”
Grygiel is a co-chair for Greenberg’s media and entertainment litigation practice. The vast majority of his cases involve defending news organizations, media companies, and content producers from claims based on what they have published. Some of the lawyer’s cases involve representing personal counsel to professional athletes; namely, he represents tennis players and a few NBA basketball players.