“The First Amendment Doesn’t Apply If I Actively Misread It”

Occasionally, a public official—a superintendent of schools, perhaps—says something that makes him look like a grown-up. Until you understand the circumstances or read further, that is.

Chip McGee: Not a Constitutional Scholar

Here’s Bedford, New Hampshire school superintendent Chip McGee, commenting on a flurry (get it, flurry?) of tweets from Bedford High students who, shall we say, took issue with his decision to re-open school a day earlier than they’d expected following a major snowstorm: “Kids said some very funny, clever things. And some kids stood up and said, ‘Hey, watch your manners.’ That was great. And some kids—a few—said some really inappropriate things.” So far, so good, yes? A perfectly reasonable commentary on the fact that sometimes high school kids act like adolescents. I know, crazy, right?

And he even starts the next paragraph intelligently: “It’s been a really good exercise in issues of students’ right to speech, on the one hand, and students’ and teachers’ rights to an educational environment that’s conducive to learning. Kids have the right to say whatever they want about me.”

Why yes, yes they do. Ah, but ol’ Chip is a school superintendent, so we can’t expect a full two consecutive paragraphs of sanity. And the old Frank and Nancy Sinatra song, “Something Stupid” wafts through Curmie’s mind: “and then [he] had to spoil it all by saying something stupid like…” Well, not “I love you,” as the song would have it, but this drivel:

However, this does not mean students should expect to be able to make inappropriate comments on social media without consequences [even though the tweets were sent outside of school].

The First Amendment right means you can say what you want, (but) it doesn’t mean that you are free of repercussion. It can’t disrupt what we’re doing in school ... If something disrupts school, and it (occurs) outside school, we not only can take action, we have to.

Once again, Curmie, ever a fan of brevity, contemplates a single word rejoinder. Something to do with equine poop would seem most appropriate. But there may be those who don’t quite understand why, as Patrick at Popehat observes, “Actually, the First Amendment means that students do have the right to say that Chip McGee is an appalling dildo-bat from the privacy of their homes, even on social media, without governmentally-imposed consequences. [Obvious typo corrected; emphasis in original.] 

And, like it or not, a school superintendent is a government official. What that means is that Mr. McGee has the right to be butt-hurt if he wants to be, and he is within his rights to respond in any otherwise legal manner as a private citizen. He could, for example, choose not to hire one of the offending students to babysit or to leave a crappy tip for another at the Pizza Hut; he might even omit a superlative in that letter of recommendation he was writing for another kid. What he cannot do, by any reasonable interpretation of the First Amendment, is to impose penalties on students in his capacity as superintendent for off-campus activity that is in itself not illegal. And that, of course, is precisely what he did. (Exactly what penalties were imposed in unclear—possibly suspension of up to four days, but the school is hiding behind legalisms, as if it really cares about either student privacy or the law.)

That is, if students were to plan a riot, to organize the sale of illicit drugs, or indeed actually to defame Mr. McGee (as opposed to calling him a poopoohead), then he’s within his rights to punish the students involved. Otherwise, no. Here’s Curmie netpal Jack Marshall, lawyer and ethics blogger, on the subject:

The students are absolutely guaranteed of speech without “repercussion,” if the speech is off school grounds and the repercussion is from a school official who takes offense. The school has no authority to punish students for what they post on Twitter, from their homes, none at all, unless it relates directly to action at school itself, such as organizing a school disruption. A student opinion of the superintendent or his decisions? That’s 100% protected speech….

No merely insulting or uncivil tweet is going to disrupt school, and if that’s Chip’s claim, he has a rather tough burden of proof to demonstrate it. Nor does a public school—that’s the state, you know— have the right to effectively censor speech by punishing content. If the speech isn’t libelous or a credible threat, Chip McGee’s remedy consists of asking to speak with the Tweeter and express his hurt and disappointment, or perhaps consulting with the student’s parents, who do have a right to limit online speech when their children are the speakers. As an educator, he might explain to the student that insulting authority figures you must relate to on mass social media is neither wise, civil, nor a good habit, and suggest that an apology is in order. He may not, however, abuse his power and position to constrain the free speech of those students and others by inflicting punishment. [Minor typos corrected; emphasis in original.]

The more perspicacious Curmiphiles will note, perhaps, that Curmie’s favorite blog sites—Popehat, Ethics Alarms, Instapundit—got that way by being always interesting and usually right (“right” in this context means “agreeing with Curmie,” of course: we all have a bit of the Humpty Dumpty about us). They may also notice that Curmie doesn’t really have a lot to add, especially since he’s written about precisely this kind of overreach on numerous occasions in the past: here, here, here, and here, for example.

But we do indeed need to be reminded that the superintendent of schools is likely to be an idiot, that the First Amendment really does apply to high school kids, and that the merely inappropriate is different from the legitimately censorable. There are limits to free speech: incitement, slander/libel, and the like. But there is not constitutional right to warm fuzzies, and Chip McGee is no more or less entitled to freedom from butthurtitude than everyone else.

Curmie is a native of New Hampshire, and knows first-hand that it can get cold there in the winter. Maybe Curmie Award contention will keep Superintendent McGee a little warmer at night. Nah, probably not.