Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1473
student speech today. 468 Two commentators have lamented that
Columbine gave school administrators “all the reasons — legitimate or
illegitimate — they needed to trounce the First Amendment rights of
public school students in the name of preventing violence.” 469
Another commentator illustrated the dilemma facing today’s teachers
and administrators by asking: “How do you distinguish between idle
words and legitimate threat? Lean one way and you might be chased
one day by a kid with a gun. Lean the other and you might find a
lawyer with a subpoena coming after you.” 470 Balancing students’ oncampus
speech rights with the need for order and discipline in schools
never has been, nor ever will be, an easy task; the recent incidents of
gun-related violence in schools have made the undertaking no less
difficult. 471 If the cases discussed above accurately reflect judicial
468 See, e.g., Richards & Calvert, supra note 466, at 1094 (surveying student speech
cases in wake of shootings at Columbine High School in Colorado, and noting that
tragedy factors heavily into judicial decisions about whether student speech
constitutes threat or disruption to educational environment).
469 Id. at 1091. See generally Clay Calvert, Free Speech and Public Schools in a Post-
Columbine World: Check Your Speech Rights at the Schoolhouse Metal Detector, 77
DENV. U. L. REV. 739 (2000) (analyzing student speech cases in first 12 months after
Columbine shootings and concluding that culture of fear led courts to take overly
restrictive stance toward student expression).
470 See Tim Swarens, Editorial, Seeking Security at School, INDIANAPOLIS STAR, Aug.
27, 1999, at A18, cited in Pisciotta, supra note 447, at 640; see also John Loesing, Bad
Student Behavior Irks Parents at Sumac School, ACORN (Agoura Hills, Cal.), May 17,
2001, available at http://www.theacorn.com/News/2001/0517/Front_Page/01.html
(noting that parents were upset at behavior of elementary school student who
repeatedly gave the finger to other students and pointed his finger as if it were gun,
and quoting president of teachers’ union, who observed: “If you discipline the
student, the parent threatens litigation against the district [and i]f you don’t discipline
the student, the parent of the child that has been victimized threatens to sue the
district”).
471 See J.S. v. Bethlehem Area Sch. Dist., 757 A.2d 412, 422 (Pa. Commw. Ct. 2000)
(emphasizing that, where school violence has become more common, school officials
should take threats against teachers and students seriously); see also Pisciotta, supra
note 447, at 635-38 (discussing incidents of school violence and noting that, in
response to these events, school officials throughout country began to establish zerotolerance
policies regarding threats of violence by students); James Brooke, Terror in
Littleton: The Overview; 2 Students in Colorado School Said to Gun Down as Many as 23
and Kill Themselves in a Siege, N.Y. TIMES, Apr. 21, 1999, at A1 (noting that six major
incidents of gun violence in schools occurred in 1998 and discussing deadly massacre
at Columbine High School, which left 12 students and one teacher dead); Sandy Davis
& Oliver Uyttebrouck, Boys Held Over in Killings; 2 Toted 13 Guns, Had Survival Gear in
Van, ARK. DEMOCRAT-GAZETTE (Little Rock, Ark.), Mar. 26, 1998, at A1 (reporting that
two middle school students pulled fire alarm and opened fire on classmates and
teachers as they exited building, killing four students and one teacher); cf. J.S., 757
A.2d at 428 (Friedman, J., dissenting) (arguing that schools must find balance between