Students, Websites, and Freedom of Expression in the United States and South Africa

Document Type

Article

Publication Date

2013

Publication Title

De Jure

Keywords

Internet, students, school discipline, schools, cyberspeech, punish

Abstract

While in the US the problem of school discipline in the context of students’ roaming on the electronic communication highway has been subjected to much jurisprudence, and a historical evolution is discernible,this is not the case in South Africa. This article has three purposes. The first is to examine how the following five factual variants in student cyberspeech cases affect the authority of schools to punish students: the place or origin of the expression (on or off school premises), the place of access to the expression (on or off school premises), the person(s) who accesses the expression (staff or other students), the content of the electronic expression, and the impact of the expression on the school. The second purpose will be to discuss how the authority of schools to punish students for off-campus cyber interacts with the parents’ right to direct the education of their children. The final purpose of the article is to extrapolate guidelines from jurisprudence in the US on the issue for South Africa, where this issue has not been as thoroughly thrashed out in jurisprudence as in the US. The Constitution of South Africa states that when interpreting the Bill of Rights contained in the Constitution, a court,tribunal or forum may consider foreign law.

A discussion of student cyber expression rights requires a multi-faceted approach that explores both the judiciary’s consideration of student expressive rights and the authority of schools to disciplinestudents. This article will develop this balancing act by the courts bydividing the article into five sections that discuss: (1) The key US SupremeCourt decisions affecting student expression; (2) the application of theseUS Supreme Court decisions to two selected cases (one state and theother federal); (3) the complicationsassociated with analysing legaltheories regarding cyber speech; (4)the implications of court decisions regarding student cyber speech,particularly as impacting the constitutional right of parents to direct the education of their children,and finally; (5) the South African jurisprudence on freedom of expressionand its impact on student rights.

Volume

46

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