In a letter sent to the district last week, Delaware ACLU legal director Richard Morse said the district's (Capital) student social media policy, still in draft form, and a separate employee policy, adopted in August, are both clear violations of First Amendment rights...
The student policy, drafted in August and listed on the Capital board's agenda for Wednesday night, contains a "Prohibited Activities" list that bars students from posting negative comments about individuals or groups based on legally protected characteristics such as race or religion...
Capital's policy governing the online conduct of staff contains the same prohibitions as the student policy, and also bars employees from posting disparaging comments about co-workers, bosses or the public, even while off the clock...
I'm going to risk being the lone wolf... I was taught that the first amendment rights are guaranteed rights in so long as they are not used to compromise or infringe upon the rights of others.
Free speech or freedom of expression is the right to speak freely without censorship. However, in practice, this right is not absolute, it's commonly subject to limitations such as libel, slander, obscenity and incitement to commit a crime.
In the context of our global community, there's another document that defines human rights - the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948. The Universal Declarion is recognized in the International Covenant on Civil and Political Rights and as such the freedom of expression is recognized as Internation Law - one ratified by the United States.
However, Article 19 of the ICCPR stipulates that the exercise of these rights carries "special duties and responsibilities" and may "therefore be subject to certain restrictions" when necessary "[f]or respect of the rights or reputation of others" or "[f]or the protection of national security or of public order (order public), or of public health or morals".[1][2] Various subsequent governing documents indicate that "limitations to freedom of speech may occur through legal sanction or social disapprobation, or both."
Which brings us back to the ACLU and the Capital School District's policies - It's one thing for a citizen to take to the internet to criticize a public figure - an elected official or a department of government. Laws governing slander and libel protect the individual but do not shelter the public persona - the actions of a public person or agency. But, that same right of criticism is NOT afforded to the PRIVATE individual - a student or co-worker - or the PRIVATE life of a public figure.
Unless the NJ left out some brazen language in their story, Captial's policies do not seem to violate the right to freedom of expression in any form. The policies themselves are social disapprobation - an expression of strong disapproval and a pronouncement of what is ethically culpable and that falls right in line with the international interpretation of this human right.
Furthermore, Capital's policies are aligned to legally protected characteristics - race, religion, sexual orientation, gender, etc. When a person, citing free speech, attacks these characteristics they are essential committing a hate crime. And such behavior from a student would most certainly fall within the social definition of bullying, if not the legal definition. And when these violations occur they erode the fundamental human right to safety.
The question posed to you today: Should the freedom of expression be absolute? even if that means violating the rights of others to safety and/or protection? Should the law protect the reputation of a private individual? Does International law trump National law? And should we be permitted to say what we will even if that means hurting innocent children? Or is the ACLU over-reacting?
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