Dan Abrams: Crack Down on Student Speech

While he plays a lawyer on TV, the ABC “voice of reason” juxtaposed to the Nancy Grace’s “voice of insanity,” it’s clear that  Danny Abrams needs to bone up on his legal research and caselaw analysis.  In a post at Lawyers.com, the Lexis-Nexis, Martindale-Hubbell effort to feign relevance in a digital world under the guiding hand of former social media marketer, now editor, Larry Bodine, Abrams cries about the falling sky :


Social media has changed everything, moving that chatter to the public sphere and putting educators on uncertain legal ground. Whether the issue is students making fun of their teachers or principals, kids bullying other kids, protesting school policies or flouting student codes of conduct, the move into the social media arena complicates an important legal issue.

Social media can be experienced and produced on mobile devices like smartphones and tablets, and that makes it difficult to determine a student’s location when offending comments are made. Imagine that a high school student posts an offensive picture of her principal on Facebook via her mobile phone. If the student pressed “Post” while sitting in her school’s parking lot it could theoretically be grounds for suspension, but if she’s five blocks away the school’s administrators might not have a legal leg to stand on.

Imagine a student posting offending comments? Not even the slightest question as to whether a student’s speech should be protected.  Shut those miscreants down. How dare students speak. How dare a student “offend” his principal. We can’t allow that, or the next think you know, students will think for themselves.

But worse than Abrams’ total embrace of the notion that students should have no right to free speech is his absurd misstatement of the law. No legal leg to stand on? Not in the land of the free, brother. 

Abrams raises two 3d Circuit cases upon which he rests his claim. 
A pair of federal cases involving student-created Myspace pages, for example, established that a school’s right to discipline may be confined to actions that take place on its physical grounds, even when the offending speech exists in the digital sphere. Although the Myspace pages caused disruptions that reached school hallways and (in one case)could be accessed on the school’s computers, the court held that the school had no right to discipline the students for speech that occurred outside school property.

Clearly, he never read the decisions, as his story bears no resemblance to their holdings.  Had he even bothered to read his own link, he would have realized that he got it completely wrong:


Using the guidance provided by the Supreme Court, the Third Circuit held that the students’ speech did not cause a substantial disruption in the school.  Nor did the creation of the profiles forecast a substantial disruption which would allow a school district to punish a student.  Further, just because the students’ speech was lewd, vulgar, and offensive and had an effect on the school and the educational mission of the District (one of the exceptions to the Tinker rule), the fact that it was off-campus speech meant it fell within the free speech umbrella.  Even if it reached the school, it was not enough to qualify under the Tinker substantial disruption exception.


Needless to say, had Danny done an legwork at all, he would have stumbled onto the case of Avery Doninger , whose run for student office was  terminated with prejudice because she called her school’s superintendent and principal “douche bags” for canceling a school function.  Or Morse v. Frederick, the  ill-conceived “bong hits for Jesus” case.  Anything strike a bell here, Dan?

It’s not that Dan Abrams isn’t allowed to take up arms against student speech, if he hates it as much as he says.  Just because his father was one of the premier advocates of free speech doesn’t mean the son can’t despise the First Amendment. Sometimes, the apple rolls far from the tree. Very, very far.  That’s his right.

What is not his right is to misstate the law and make people stupider for having read his post. 

For reasons that are unclear, Danny has become a legal television celebrity, his inability to find the courthouse notwithstanding.  His smiling face appears regularly, almost daily, the ABC entertainment show, Good Morning America.  Millions upon millions of people listen to him debate Nancy Grace on legal issues of the day, and given that the bar is being slightly more astute than one of the looniest legal commentators ever, he comes off as eminently reasonable.

But with his celebrity comes a responsibility.  It’s a duty to educate.  It’s a duty to be accurate.  It’s a duty to not let his hatred of free speech for others (remember, he’s a member of the commentariot, and as such gets paid to speak freely) color his legal explanation of the state of the law.  That he cannot do.  Yet, that’s exactly what he does here.

I remember Danny from the old days at MSNBC in Secaucus, when he was a nice young man, a lawyer who hitched his wagon with television rather than courtrooms. Smart, polite and badly in need of a well-pressed shirt, Dan’s heart and mind were in the right place even if he lacked the experience to back it up.  Now that he’s a celebrity, maybe his darker angels have taken over.  Maybe he just hates kids. I don’t know.

What I do know is that Dan Abrams is smart enough to figure out what the law says, and that regardless of his opinion that student speech needs to be shut down, the use of his celebrity and his law degree to grossly misinform people is irresponsible.  Unless, of course, he’s got it in his head to take over the Nancy Grace role on TV, in which case this post nails it.


 


 


8 thoughts on “Dan Abrams: Crack Down on Student Speech

  1. Dennis Murphy

    If Danny would have just listened to Floyd, he’d have a better 1st Amendment approach. Maybe even Ronnie.

  2. SHG

    Given all that Floyd accomplished, it’s really quite astounding that Danny has no sensitivity to free speech. I hope Ronnie knows better.

  3. ShelbyC

    “But worse than Abrams’ total embrace of the notion that students should have no right to free speech…”

    Your post seems to imply that Abrams is advocating restrictions on student speech. For a post critical of Abrams for not reading the cases he cites, I question whether or not you actually read his article.

  4. SHG

    Yes, I did read it. As have others. I assume you read it differently. If there was something you thought I misread, it would have been useful to include it in your comment. As you haven’t, I shrug.

  5. Sgt. Schultz

    It may be a bit subtle, but there is no question that Abrams’ thrust concerns the “school’s right to discipline” students for social media speech. I read it the same as SHG.

  6. SHG

    Another misstatement by Danny. Students have a “right” to free speech. Schools have no rights, only authority, again reflecting a misguided view.

  7. ShelbyC

    I thought was you misread was clear from my comment. Abram’s article simply doesn’t advocate the restrictions that you claim it advocates, Sgt. Schultz’s perception of a subtile thrust not withstanding. Given that your post is strongly critical of Abrams for a minor inaccuracy involving a third circuit decision, I found this inaccuracy on your part rather remarkable.

  8. SHG

    Frankly, I don’t see it as subtle at all. The post clearly addresses the inadequacy of a school’s ability to control and discipline students for speech due to their inability to (based upon his misstatement of the law) know whether the speech was made on school ground or off. There is no question in my mind what Danny is saying.

    You are, of course, free to differ, but that was and remains my reading of the post.

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