The Volokh Conspiracy - The ACLU of Pennsylvania and Schools:

A reader passed along to me this item from a USA Today article last week:

Witold Walczak, legal director for the American Civil Liberties Union of Pennsylvania, defended Flaherty and other students who were expelled and punished by schools for statements they made online from their home computers.

He agrees that districts should punish students who post admissions of illegal activity — such as high-schoolers who post pictures of themselves drinking, doing drugs or committing other criminal acts. He also agrees that racist remarks or postings that promote or predict violence should be punished.

The reader, Brian Teague, wrote: "I would be very interested to read your comments in the VC regarding this article from today's USA Today, especially the excerpt below detailing the ACLU's distorted (in my mind) view of the apparent limits of the first amendment [referring to the 'racist remarks ... should be punished' item]."

I too was puzzled by Mr. Walczak's paraphrased position, but thought I'd e-mail Mr. Walczak first to clarify his views. Mr. Walczak was kind enough to promptly get back to me, and reported that the paraphrase actually misdescribed his position, which is this:

Schools might be able to punish students who post admissions of illegal activity, not for the speech but for admitting the illegal activity [I take it referring to the use of speech as evidence of the activity -EV]. The law is unsettled in this area which is why I say might.

If a student threatens violence or uses racial epithets against another student or teacher while in school, he might be punished under the Bethel v. Fraser standard. Again, the line between harassing and protected speech is unclear.

In any case, since the issue came up, I thought I'd pass along Mr. Walczak's correction. It's hard to tell for sure whether the reporter misheard, misunderstood, or mistranscribed what was said (something that reporters, like others, sometimes do), or whether Mr. Walczak misspoke. But I thought it might be helpful to know that, one way or the other, the legal director of the ACLU of Pennsylvania doesn't endorse the view that was ascribed to him in the article.

	[Eugene Volokh, November 1, 2006 at 4:52pm] Trackbacks The ACLU of Pennsylvania and Schools: A reader passed along to me this item from a USA Today article last week: Witold Walczak, legal director for the American Civil Liberties Union of Pennsylvania, defended Flaherty and other students who were expelled and punished by schools for statements they made online from their home computers. He agrees that districts should punish students who post admissions of illegal activity — such as high-schoolers who post pictures of themselves drinking, doing drugs or committing other criminal acts. He also agrees that racist remarks or postings that promote or predict violence should be punished. The reader, Brian Teague, wrote: "I would be very interested to read your comments in the VC regarding this article from today's USA Today, especially the excerpt below detailing the ACLU's distorted (in my mind) view of the apparent limits of the first amendment [referring to the 'racist remarks ... should be punished' item]." I too was puzzled by Mr. Walczak's paraphrased position, but thought I'd e-mail Mr. Walczak first to clarify his views. Mr. Walczak was kind enough to promptly get back to me, and reported that the paraphrase actually misdescribed his position, which is this: Schools might be able to punish students who post admissions of illegal activity, not for the speech but for admitting the illegal activity [I take it referring to the use of speech as evidence of the activity -EV]. The law is unsettled in this area which is why I say might. If a student threatens violence or uses racial epithets against another student or teacher while in school, he might be punished under the Bethel v. Fraser standard. Again, the line between harassing and protected speech is unclear. In any case, since the issue came up, I thought I'd pass along Mr. Walczak's correction. It's hard to tell for sure whether the reporter misheard, misunderstood, or mistranscribed what was said (something that reporters, like others, sometimes do), or whether Mr. Walczak misspoke. But I thought it might be helpful to know that, one way or the other, the legal director of the ACLU of Pennsylvania doesn't endorse the view that was ascribed to him in the article.