How a School Class President Video Became a First Amendment Freedom of Speech Battleground
A video depicting a student as James Bond rescuing a friend from terrorists is now a court battle over First Amendment freedom of speech rights.
A short video for one high school student’s class president campaign has touched on the blurred lines between free speech and disruptive speech and sparked a court trial over First Amendment freedom of speech rights and constitutional law.
The student running for class president and his friends thought it would be funny to create a video where he would pretend to be James Bond rescuing another student abducted by terrorists. They shot an unscripted video using fake guns and a car and then posted the video on YouTube. The video set off a debate still evolving today, a year and a half later.
The students involved attended San Ramon Valley High in Danville, California. They wanted the video to be fun, light-hearted and hopefully help their friend win the class presidency. But instead, it prompted student protests, walkouts and became the grounds for a lawsuit that will be going to trial soon.
The video received only 30 views within a 12-hour period and was pulled down after the students found out the next day at school that other students found the video offensive.
The lead student playing the character of James Bond is a stout Catholic of Asian descent. His friends who acted as terrorists are devout Muslims and Afghan-Americans. School classmates regarded the role played by the supporting cast as racially and culturally insensitive.
First Amendment Freedom of Speech Violation or Disruptive Speech?
N.Y., as the kid playing James Bond kid is referred to in court documents, was called into the vice principal’s office where two assistant principals, Jamie Keith and Dearborn Ramos, interrogated him for hours. Another assistant principal Bernie Phelan also came into the office and joined in the interview.
In court documents, N.Y. claimed the assistant principals chastised him for the video and even threatened to have an officer search his home for the guns used in the video.
The young student said he made it clear to the school officials that he never intended the video to be offensive and did not foresee that anyone could find it in bad taste.
“We wanted something entertaining and to keep the people who viewed it laughing,” N.Y. wrote. “My intent for the video was to portray me as a hero like James Bond saving the day. I personally didn’t expect the turnout.”
The school authority disqualified N.Y. from contesting in the election, kicked him out of a leadership class and removed him from his position as junior class president.
With a threat to sue from N.Y.’s lawyers, the school reinstated the student and even gave him the presidency since he already had the highest votes. The James Bond kid got what he wanted, but not the school community.
A month after N.Y.’s reinstatement, students and up to 140 teachers, as well as school district employees, wrote the school board to protest the reinstatement.
N.Y. contends in a lawsuit filed soon after that his reinstatement was portrayed to students in a manner to align them against him because the school insisted he was only reinstated to avoid the lawsuit.
N.Y. and his family sued the San Ramon Valley School District and top officials of the San Ramon Valley High School for racial discrimination, retaliation, and violation of his First Amendment rights to free speech.
First Amendment Freedom of Speech Scholars Are Undecided
In the lawsuit, N.Y.’s lawyers referenced Tinker vs. Des Moines Independent School District. In that lawsuit, students were suspended for wearing black armbands protesting the Vietnam War.
The Supreme Court ruled that for schools to censor speech they “must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
Tinker established that a school must prove that a student’s speech could significantly disrupt the school environment or violate other students’ constitutional rights.
“The reason for the discipline was because of his speech. They didn’t like what he had to say. That’s a violation of the First Amendment,” said N.Y.’s attorney D. Gill Sperlein. “At worst, the video may have been racially insensitive in some way. But I’m not in any way conceding that, but even if that is the case, students have the right to be offensive.”
Several First Amendment scholars and constitutional experts have weighed in on the matter, saying both the plaintiff and the defendants have strong cases as the lines between First Amendment freedom of speech rights and disruptive speech are blurred.
First Amendment scholar and dean of the Widener University’s Delaware School of Law Rodney Smolla told Courthouse News that he believes N.Y. has presented a strong case that his First Amendment freedom of speech rights were violated.
“Supreme Court and lower court decisions tend to defer to the judgment of school officials when the student’s speech is part of a school-sponsored activity, including extra-curricular school activities such as student government elections. Yet the student here received a relatively extreme punishment for what appears to be a very mild transgression—if it was any credible transgression at all,” Smolla said.
“His video was a political parody. The school’s prohibition of ‘inappropriate’ material strikes me as vague and overbroad,” Smolla added. “There appears to be little proof of any real disturbance or disruption. If what is alleged in the complaint bears out as true, I believe the student has a strong claim for a violation of his First Amendment rights.”
Other experts like Luke Boso, a constitutional law professor at the University of San Francisco, are not so sure.
“The consensus seems to be that a school could punish off-campus speech if it has a reasonable basis for believing that the speech could reach campus and substantially disrupt the work of the school,” he said. “It seems the school does have a strong case on both of those requirements.
U.S. District Judge Maxine Chesney tried on two occasions to reconcile N.Y. and the school without any success. N.Y.’s attorney Sperlein has announced they wish to go to trial.
Judge Chesney has set the trial for March 2019.