My iPod is ready for Nairobi

With rather long flight times between Harrisburg and Nairobi (Harrisburg to Detroit, to Amsterdam to Nairobi over a two-day stretch and the reverse coming back) I had to load some new stuff on the iPod. First up, was the cast soundtrack for “The Story of Mormom,” which I had wanted anyway, but sort of makes sense since it is set in Africa. I haven’t played it yet, but from the reviews I have read it appears that Parker and Stone have gone easy on the Mormons but hard on the Africans, which surprises me. I say that although the Mormons have officially been low-key in their displeasure. It did however, prompt one commentator to remark, “The Book of Mormon is a minstrel show for our present age with Mormons as the joke. Broadway has given aid and comfort to the mob of ignorant folk who know nothing of modern Mormonism outside of their prejudices”  but that comment is taken from Salt Lake City’s Deseret news. Regardless, it is the highest charting Broadway cast album since “Hair,” so we will have to see.

Next up is a “new” Neil Young release, “A Treasure”. New is in quotes because it is a live compilation from a 1984 and 1985 tour with the countryesque International Harvesters. This was when Young was famously sued by his record label for not writing Neil Young style music.

But what I really tried to do with only limited success was to put together a playlist of Kenya music. But is is hard to get contemporary Kenyan music off iTunes. As one commentator put it, “Kenya’s pop music is undoubtedly one of most diverse in Africa. Unfortunately, by the time her music has passed through the long filtering process of the international “market,” only a handful of titles make it on to the this amazing diversity who must rely on “the market” to bring Kenyan pop music to their local record shop, this amazing diversity of pop sounds the best kept secrets of Africa.” So I think what I ended up with would be more accurately considered “oldies.”

I have “Benga Blast” by Daniel Owino Misiani and Shirati Jazz. The Luo benga band toured in Europe, so is somewhat known outside Kenya but I doubt it gets a lot of downloads off iTunes.

“Kenya Dance Mania” has some great songs by Les Wanyika, Super Wanyika and Maroon Commandos. Again, this is more of a greatest hits than current compilation.

Finally, “Music from Kenya” is another compilation CD. It is rather eclectic, including, for example Maasi chants. My favorite is “Africa Must Say No” by Them Mushrooms, which is performed in English.

So I hope to a little bit of an education in what is currently popular while I am in Nairobi and pick up some CDs that I can download onto my iPod.

Women’s World Cup, part three: Group D

I leave for Nairobi and the Widener University School of Law Summer Abroad Program in exactly one week and I am getting very pumped. As I said earlier, the only downside is that I will not be home to watch the Women’s World Cup on my trusty HD flat screen. Since I will be in Africa, my two teams — in addition to the USA — will be Nigeria and Equatorial Guinea. I blogged about Nigeria and Group A yesterday and today I take a look at Group D.

The no brainer is that Brazil will win the group handily and — along with host Germany and number one ranked USA — has a real shot at taking the whole thing. Brazil, which came in second to Germany in 2007, features Marta, who is currently the best player in the world.

Norway will also do well. Pros: have been in every Cup, won the 1995 Cup, won the 2000 Olympics, have always been strong in Europe. Cons: in the same group with Brazil. So I will pick Norway as runner-up.

How can you not like a team called the Matildas? But Australia will be without their top striker Kate Gill (injury). They would need some luck to top Norway for second place.

Unfortunately but realistically, Equatorial Guinea  — despite my rooting for them –will not advance to the knock-out round in their first trip to the Cup.  But you have to start somewhere. Here’s hoping that put together a decent freshman debut.

The winner of Group D plays the runner-up of Group C on July 10. I am calling for Brazil v. Sweden, with Brazil advancing. The runner-up of D plays the winner of C the same day; I have USA playing Norway. That will be a tough contest but I have to go with the USA.

Women’s World Cup part two: Group A

I am continuing my preview of the Women’s World Cup, with a bit of emphasis on the two African teams, since I will be in Nairobi (or in transit) during this Cup.

Group A could easily shape up to be the most interesting group in the 2011 Women’s World Cup, with each team — Germany, Canada, France and Nigeria — offering an interesting story.

As the host country and defending world champion, Germany obviously has to be favored to win Group A if not the whole tournament. In light of the fact that they won the last two Cups, I’m not sure while there are rated second in the world behind the USA, not even factoring in home field advantage. That being said, the real battle in Group A will be for the right to advance in second place.

Canada, which will have home field advantage in 2015, beat out the United States with a win over Mexico to qualify for the Cup and came in fourth in the last Cup. Unfortunately for them, they play Germany on opening day in Berlin. Anything other than a loss there would be a shocker, so it is the head-to-heads against France and Nigeria that will determine their fate.

France has only been to the Cup once previously and the women trail the French men in soccer prowess, but France put together a 10-0-0 record in UEFA qualifying with an astounding fifty to zero goal differential. They also play on opening day, against Nigeria.

That brings us to Nigeria, the African entry in Group A. Nigeria has been to every Women’s World Cup, but hasn’t fared well, with a 2-11-2 record and no victories in the knockout round (which it reached only once).  Nigeria also lost a recent friendly to Germany by a score of 8-0. Striker Perpetua Nkwocha will have to step up big time for the Super Eagles as will keeper Precious Dede. Nigeria will need a break such as their male counterparts experienced in Athens, Georgia, USA in 1996 when they took the Olympic Gold from Argentina in a 90th minute score occasioned by an ill-conceived attempt at offsides trap by Argentina. I was fortunate to see that game live.

The winner of Group A plays the runner-up of Group B and the runner-up of B takes on the winner of A in the quarterfinals. I think B is the weakest group — Japan, New Zealand, Mexico and England — and Germany should be able to handle any of those. If the Super Eagles were to succeed in nailing down the runner-up spot they would have a chance of winning their first knock-out round match, against either Japan or Mexico.

Morton versus Gould redux

While getting ready for my classes in Kenya, specifically for a discussion of the “scientific” and religious theories that justified racism and, in turn slavery and colonialism, I reviewed a law review article I wrote back in 2000: “Blood Will tell: Scientific Racism and the Legal Prohibitions on Miscegenation.” Most of what I wrote back then still holds up, but there is one intersting new twist.

In the article I discussed Stephen Jay Gould’s attack on Samuel George Morton, who developed the theory, published in “Crania Americana: Or: A Comparative View of the Skulls of Various Aboriginal Nations of North and South America” (1839) that one could rank the races based on the size and other characteristics of the brain. I talked about Morton and what Gould had said about him in his “The Mismeasure of Man.” Gould concluded that Morton had manipulated the data to prove his preconceived theory of wjhite racial supereriority.

But there has been an interesting recent development in the debate between Morton and Gould.

The result of Morton’s extensive study of skulls placed Whites at the top, Indians in the middle, and Blacks at the bottom of the racial hierarchy. But, according to Gould, Morton’s results were completely wrong, although not the result of “conscious fraud.” It appeared to Gould that Morton’s results simply mimicked his preconceived convictions. What I wrote then was, “What is interesting is Gould’s assertion that he [Morton] did not realize his errors–had they been intentional misrepresentations, he would not have openly displayed his data in a way that allowed Gould to recalculate his numbers.” Implicit in my statement was something that just came out: Gould never actually looked at Morton’s skulls themselves but instead based his critique of what Morton did on Morton’s written data alone. In a paper released earlier this month, scientists did go back and look at the skulls, which were privately collected and owned by Morton but which eventually ended up at the University of Pennsylvania Museum of Archeology in Philadelphia. According to the paper published in an anthropological journal, Gould, who had accused Morton of manipulating the data to support his racial theory, actually was the one who manipulated the data to prove his (Gould’s) theory that scientists manipulated data to prove their preconceived views.

Of course in one sense the point is now moot since no one believes that there is a correlation between brain size and IQ anymore anyway, but that didn’t stop at least one White Supremacist web site from hyping the new findings as proof that Morton was correct and whites are superior.

Gould died in 2002 and Morton, of course, is long gone, so it is up to others to carry on the debate, but it is fascinating to see how the concept of race still riles the scientific community. If the new article is correct, Gould did exactly what he accused Morton of doing, misread neutral data to support his own preconceived notion.

But although it was Morton who found that whites had bigger skulls, further rehabilitation of Morton’s reputation suggests that it was Morton’s followers, not Morton himself, and racists of the time that embraced the data as proof of white superiority, although I don’t buy into this argument 100%. Morton did not hesitate to assign moral and intellectual characteristics to the various crania he surveyed, assigning the “highest intellectual endowments” to the White race and holding some tribes of the “Ethiopian” race to be “the lowest grade of humanity.” Surveying Blumenbach’s classification of five races, he found a hierarchy of brain volume: “Caucasian, Mongolian, Malay, American and Negro.”

Terror at the Sushi Bar: The Ecological Disaster on the tip of your Chopsticks

I am a long-term (at least 27 years) sushi fanatic, so let me say at the top that I am not advocating boycotting sushi. To the contrary, I eat sushi every chance I get, including the occasional pilgrimage to Morimoto’s in Philadelphia, and one time I looked up my favorite sushi chef in Akasaka, Tokyo after he returned home from Philadelphia.

But visualize a traditional sushi platter with five or six pieces of nigiri (slices of fish on small cakes of rice) and a roll. That one little platter can be used to illustrate a great many themes, including: international law and treaties, international trade, agricultural law and policy, the “tragedy of the commons,” regulation of GMOs (genetically modified organism) and even a bit of cultural imperialism if you wish.

I will play this out over a number of posts, and I will also present this as a discussion at our first “Pizza & Policy in the Pit” on Tuesday, August 31 at noon (where you can safely eat pizza without guilt) but let me just give you a quick overview.

Let’s start with a slice of tuna. Now the centerpiece of most sushi presentations, it wasn’t that long ago that tuna other than albacore that ended up in cans was discarded or made into cat food. The Japanese disdained it as too fatty until post-WWII American occupation forces corrupted their diet and turned them into tuna fanatics. If the tuna on your platter is Bluefin, you are probably paying at least $120 a pound for a fish that has become an endangered species and, in regard to which, all attempts at international fishing regulation have failed. But you probably are eating Yellowfin unless you are in a very high-end sushi bar. Yellowfin is not as prized and is declining in numbers but not yet endangered. Yet.

Next, let’s take a piece of salmon. The salmon is probably farmed, as wild salmon are in steep decline due to overfishing and the damning of spawning streams for hydroelectric power plants. At first blush farming salmon and other fish seems like a great idea, a cure for global hunger. It’s not. Just a few points: it takes almost three pounds of other fish (as food for these carnivores) to grow one pound of salmon, which makes no sense at all. Farmed salmon have been selectively bred and are genetically different from wild salmon, so when they escape these “Frankenfish” are a threat to remaining wild populations. And finally, did you know that if you are eating farmed salmon you are eating a fish that was dyed salmon color? (Salmon chow doesn’t produce salmon-colored salmon so they have to be dyed the right color for consumers).

Just one more piece of nigiri: shrimp. There are some farmed shrimp available, notably from Belize, but wild shrimp harvesting can be an ecological nightmare. Southeast Asian shrimp farming operations are so unsound that you can see the damage shrimp trawlers do to the ocean by viewing Google Earth.

That’s enough depressing news for now. In future blogs I will tell you how to look for ecologically sound fish and eat guilt-free sushi; I’ll provide a suggested reading list on fish and the environment and sushi, and I will go through our sushi platter fish-by-fish to show you how the mistakes of land-based agriculture are being repeated in the oceans of the world.

Interesting developments in Groups A and B

Everybody has had one game and Groups A and B have had two and there have been some interesting developments.

The big news of Group A is just how bad France has looked with just one point after a tie with Uruguay and a stunning 2-0 loss to Mexico earlier today.  France could go home without a goal, let alone without advancing , if they don’t score against South Africa.  Both Mexico and Uruguay would advance if they draw against each other on June 22, but that would leave Mexico in second place and facing Argentina in the second round on June 27. So they have incentive to win out and face either South Korea or Greece.

In Group B, Argentina has looked very, very good, with two wins, six points and plus five on goals. I had expected more from Nigeria, but they are going home. Currently tied for second, Greece will face Argentina and South Korea will face Nigeria.

Groups C and D begin their second games tomorrow. USA faces Solvenia, which temporarily leads the group on the strength of a win over Algeria.  I will probably take seven points to win this group, so the Slovenia and the Algeria games can fairly be called “must win” for the USA.  Although taking the group from England still seems like a long shot, the winner of C takes on the runner up from D, probably Ghana, whereas the runner up in C takes on a German side that looked very strong in its debut.

Here is a fun scenario:  Mexico wins Group A, and beats Group B runner-up South Korea in the second round.  USA wins Group C and beats Ghana in the second round.  That would set up a quarterfinal of: USA v. Mexico.  That would truly be awesome. 

It’s not the vuvuzelas Cup . . .

The constant blare of the vuvuzelas (B flat at up to 127 decibels) may strike some as the signature note of this World Cup, but I am coming to think of this World Cup as the Social Networking Cup.  I had been thinking about this theme already when I got a message on the Facebook  “Chat” (Instant message)  alerting me that Switzerland had just taken a 1-0 lead over Spain.  (The author, a former student,  shall remain nameless because he was supposed to be studying for the July bar, not watching World Cup.)  I was actually working and not watching,  so a  quick flip to (streaming live) confirmed the score. The Swiss went on to hold the score to 1-0 at the finish, for the biggest upset of the first round so far. The Swiss and Spanish were the last two teams to play their first game.  The implications of the upset are for another post.

I had been thinking about this earlier because I received approximately 80 comments to my posts last Friday,  Saturday and Sunday as I watched the first nine games of the Cup with my laptop at hand. It demonstrated to me of how far social networking had come in the four years since the last cup.

For the 2006 World Cup, Facebook was still only open to college and high school students (and faculty and administrators) and there were a “mere” 10 million users.  For the 2010 World Cup anyone could be a member and there were more than 450 million of us, a 45X increase.  I was told — although I couldn’t confirm it — that service slowed up and got a bit erratic due to the volume of soccer discussion. (If so, Mark Zuckerberg was probably having fits and not enjoying the games.)  There are more people on Facebook outside the US than in it and soccer is, of course, bigger everywhere else in the world, so the traffic was international.

Twitter did not exist in 2006.  But for this Cup, 10 of the 23 members of the US team are sending out Tweets, not to mention everyone else who has something to say.

YouTube had just gone active in late 2005 and by the time of the 2006 Cup there were 65,000 postings a day and 100 million views a day.  For the 2010 Cup there are 200,000 postings per day and 2 billion daily hits, again more outside the US than in it.  (Be sure to catch the re-enactment of the USA v. England game done in animation using Lego figures.)

These tremendous increases in social media usage in a short time frame point out the transformative nature of social networking. The World Cup, with its near universal appeal (even if many Americans don’t get it) and its once-every-four-years cycle is an ideal vehicle to demonstrate this.  It may be a bit of hyperbole when David Kirkpatrick, author of the facebook effect: The Inside Story of the Company That Is Connecting the World (2010) states that “Facebook is bringing the world together,” but, for example, Chile beat Honduras (now tied for the lead in Group H with the Swiss) earlier today and facebook is bigger in Chile than it is in the USA. I can just imagine the volume of commentary flowing in and out of Chile and around the world.

When you think about this stunning rate of change and growth it becomes impossible to predict what will be going on in the interconnected world during the 2014 Copa.

Stephen Hawking, H. G. Wells and the Neanderthals

H. G. Wells’ The War of the Worlds, Stephen Hawking’ recent Discovery Channel specials and the latest news on Human Evolution and our friends the Neanderthals may seem like disparate threads to unite into a common theme, but bear with me.

In episode two of Stephen Hawkings’ Universe, Hawking warns that SETI (the Search for Extraterrestrial Life) may not be such a good idea.  Should we really be trying to contact aliens? Why do we assume that if and when aliens do appear they will come bearing the cure for cancer?  Might they not come to harvest our planet’s resources?  Or, I might add, as the old Twilight Zone episode postulated, the book, “To Serve Mankind” might be a cookbook.  Hawking notes that the Native Americans didn’t fare so well when the technologically advanced (although lost) Christopher Columbus expedition of aliens showed up.  Seen any Taino lately?

Hawkings’ statement generated a lot of chatter, but Hawkings wasn’t the first to think along these lines.

H. G. Wells, a socialist as well as a fiction author, was interested in a variety of issues, including colonialism.  He said that the idea for his most famous work, The War of the Worlds (1898) came to him when he was talking with his brother about the extermination of the indigenous Tasmanians by the English colonial regime.  What he envisioned in the novel was a reversal of fortune for the creators of the British Empire in which they  were confronted with a civilization as superior to the England of his day as England was to the indigenous Tasmanians.  Wells’ Martians, like Hawkings’ hypothetical space aliens, came to Earth because their own resources were depleted, and had no compunction about destroying the relatively primitive culture that stood in their way.  Professor Stableford put it well, “What [Wells] wanted to do was to inform the zealous champions of the British Empire that they were not the destined lords of Creation, but insignificant creatures in a vast universal scheme, which still had a long way to go before they might be reckoned competent.” (Brian Stapleford, “Introduction,” H. G. Wells, Seven Novels).

Wells War of the Worlds protagonist and narrator makes the point clearly, “And before we judge [the Martians] too harshly we must remember what ruthless and utter destruction our own species has wrought, not only upon animals such as the vanished bison and the dodo, but upon its inferior races. The Tasmanians, in spite of their human likeness, were entirely swept out of existence in a war of extermination waged by European immigrants, in the space of fifty years.”

Wells’ Martians were defeated by germs and the lesser humans prevailed, the opposite of what happened in the Americas, where better equipped but highly outnumbered European armies defeated indigenous peoples that were being ravaged by Western diseases to which they had no immunity.

But this sort of thing didn’t begin with Columbus, the Taino or the Tasmanians.  It appears from recent research that Europeans and Asians have between one percent and four percent Neanderthal DNA in their genetic make-up.  The fate of the Neanderthals, which split from the line that would become humans around 400,000 years ago and expanded out of Africa, has long fascinated both lay people and scientists.  Somewhere between 50,000 and 80,000 years ago true Humans began migrating out of Africa and into Neanderthal territory and by about 24,000 years ago the last Neanderthals went extinct.  Were humans the Martians to the Neanderthals’ British, or the British to the Neanderthals’ Tasmanians?  Not only does that appear to be the case, but it appears that there was at least a little bit of interbreeding along with the extermination.

Never mind Hawkings’ resource-hungry evil Aliens, what would we do with nice aliens bent on developing a plan for reparations in a post-colonial world?

My World Cup Predictions

The World Cup starts in just a few days, so its time to make predictions.  Most of the first round winners are pretty obvious, but second place calls are more challenging in some groups.  So here goes:

In Group A France is the obvious pick for first place. Although Mexico has not fared as well as Uruguay in World Cup competition, I am giving them the number two spot.  Host South Africa will not make it to the next round.

In Group B the favorite is obvious again: Maradona’s Argentina.  Some pundits are picking Greece for the number two spot but I will give home continent advantage to an aging Nigeria squad.

In Group C one has to admit that England, which has a shot at going very deep this time will take the group.  USA, however, will finish second.  That’s the good news. The bad news is that the runner-up from Group C plays the winner of Group D.

Speaking of Group D, Germany – even without Michael Ballack – will easily take the group, which has no clear second place team.  I will go with Serbia, although Ghana has a shot and Australia has a long-shot chance.

In Group E the Netherlands will come out on top, although they won’t go far beyond that.  Denmark’s reward for second place will be a quick loss to Italy in the quarters.

Group F belongs to Italy, with Slovakia the likely second place side.

This Copa Mundial’s “Group of Death” is Group G and the clear victim is not going to make Kim Jong Il happy.  Brazil waltzes (or should I say sambas) to an easy first and the second spot will go to Ivory Coast on the strength of home field advantage despite the likely absence of Didier Drogba.  Gerevinho will play like a Brazilian to oust Brazil’s former colonial masters.

Finally. in Group H Spain is another easy pick for numero uno.  Chile gets second, which means a South American quarter-final loss to Brazil.

The USA’s big hope is an upset of England on Saturday, June 12 (2:30 p.m. EST).

That would pit USA against the second place finisher in Group D, which could be Australia (which USA just beat easily 3-1), Serbia or Ghana. The likely second place finish behind England puts USA against Germany, as noted above, and that means a quarter-final exit for USA.

Quick quarter-final picks:  France beats the Group B runner-up; England beats the Group D runner up; Netherlands beats Slovakia; Brazil crushes Chile; Argentina easily handles Mexico; Germany beats the USA by methodically dismantling the USA’s back third defense ; Italy has little trouble with Denmark;  Spain mangles Ivory Coast/Portugal.

Semis: England ousts France in what will be a great game; Brazil crushes Netherlands; Germany beat Maradona in another great game; Italy beats Spain.

Finals: Germany will beat Spain and then lose to the winner of England v. Brazil.

The World Cup will go to the winner of the Brazil v. England game, which will be . . . . England.

Facebook/MySpace and the First Amendment

So you are convinced your algebra teacher is the worst teacher ever.  Why not vent your frustration with a condemnatory Facebook group or a fake MySpace profile?

Two Third Circuit cases that came out earlier this month point out the unsettled nature of the law of Freedom of Speech in the context of internet postings by students attacking school administrators.  Both cases involved MySpace postings; a Magistrate Judge’s opinion from Florida involving similar facts and Facebook also came out earlier this month.  Although handed down on the same day, February 4, 2010, Layshock v. Hermitage School District, 2010 WL 376184, and Snyder v. Blue Mountain School District, 2010 WL 376186 reach opposite and seemingly inconsistent results.  They also point out the lack of any real direction from the Supreme Court on point.

Both opinions review the same major Supreme Court cases, so let’s begin there.  We start all the way back in 1969 with the Vietnam protest case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503.  Students who wore black arm bands to protest the Vietnam War were suspended from school and the Supreme Court upheld their First Amendment argument and held that expression may not be suppressed in a school setting unless it would “materially and substantially disrupt the work and discipline of the school.”  The Court also stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Finally, the Court also made it clear that the school environment was “unique” and had to be factored in to any First Amendment argument.

Next in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) the Court upheld the suspension of a student who had delivered a speech using “an elaborate, graphic, and explicit sexual metaphor.”  Therein the Court distinguished Cohen v. California, 403 U.S. 15 (1971) in which it overturned the conviction of a man who wore a jacket with an obscene draft protest to a courthouse.  The Fraser court stated, the “First Amendment gives a high school student the classroom right to wear Tinker’s armband but not Cohen’s jacket.”

[I’ll skip Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) which is distinguishable by the fact that the speech in question was in a school-sponsored newspaper.]

Of course, the best-known recent case is “BONG HiTS 4 JESUS,” Morse v. Fredrick, 551 U.S. 393 (2007).  Recent, yes, but still having nothing to do with the internet and social network spaces.  In Morse the Court upheld the suspension of a student who refused to remove the aforementioned Bong/Jesus banner because “special characteristics of the school environment, and the government interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse.”  The Court found a “school environment” even though technically the event took place outside the “school house gate.”

There being little in the way of Supreme Court guidance, the Third Circuit panels also turned to a Pennsylvania Supreme Court case and two Second Circuit cases, all involving internet postings.  In J.S. v. Bethlehem Area School District, 807 A.2d 847 (2002) the Pennsylvania Supreme Court upheld the punishment of a student who created a web page at home that was aimed as his algebra teacher and explained why she should be killed, even soliciting money to pay a hitman.  Students and parents were frightened by the site and the teacher was badly frightened and took medical leave.  In Wisniewski v. Board of Education of Weedsport Central School District, 494 F.3d 34 (2d Cir. 2008) the suspended student created an image, again from home, of a pistol firing a bullet at a teacher’s head, complete with splattered blood.  The court applied Tinker in affirming the suspension.  In Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) the Tinker disruption seemed to be smaller but the punishment was lighter: the student was prohibited from running for the office of senior class secretary.  Her internet posting had urged others to contact the administrative office to complain about the cancellation of an event.  Apparently her posting caused to students to get “all riled up,” a sit-in was threatened (but apparently never took place) and the phone lines were clogged by callers..

Let’s look at the facts in the two cases that were just decided.  In Layshock the student used his grandmother’s computer to create a very unflattering fake MySpace profile of his principal.  Word of the profile “spread like wildfire” through the student body and the student also showed it to other students on a classroom computer.  Apparently because the school’s IT person was on vacation, the school could not shut down the profile and school computer use was disrupted and computer classes were cancelled.  In Snyder two students also created a fake MySpace profile of the school principal, but the profile, unlike Layshock’s which seemed to stress the principal’s obesity, suggested that the principal was a pedophile with interests in his own students.  The obscenity-laden profile was also created outside the school.  The profile was initially accessible to anyone but was then set to be seen by only some twenty-two students with “friend” status; the school’s computers were set to block MySpace so anyone viewing the profile would have had to do so at home.

With these fairly similar sets of facts the two Second Circuit panels reached opposite conclusions.  In Layshock the court found that the profile did not create “foreseeable and substantial disruption to the school,” and upheld the First Amendment claim.  But the Snyder court, stating that it was simply applying the Tinker rule, found the requisite substantial disruption, noting in the process that a well-founded belief in future disruption could also trigger the quick removal of a violative web page as well as punishment for the poster.  In addition, the court made clear that off-campus speech would fall under the Tinker test in any situation in which the disruption would occur on campus without any need to “satisfy any geographical technicality.”

So what were the disruptions?  The Snyder court looked at them at length, but in sum there were (1) two teachers had to quiet down their classes because they were talking about the MySpace profile; (2) an administrator had to attend meetings between the principal and the two offending students and as a result a substitute had to be found for her proctoring assignment; and (3) two students decorated the lockers of the guilty students on the day they returned from suspension, thereby creating a “buzz and a stir in the eighth grade hallway.”  More importantly, it appeared that some students may have taken the pedophile accusations seriously, causing concerns.

The dissent sums up my concerns about the Snyder holding, “I believe that this holding vests school officials with dangerously overbroad censorship discretion.”

So what can we learn from these two apparently inconsistent cases?  It seems that a Facebook or MySpace page created outside the school environment, i.e. on a home computer can be treated as in school speech but only if it passes the four decades old Tinker test by creating a foreseeable risk of campus disruption.  The cases finding that the internet-based speech was entitled to First Amendment protection seem to fall into the category of harmless parody (the Layshock principal was fat; the Garber teacher was “the worst teacher I ever met”) as opposed to postings which suggested danger or violence (J.S’s call for a hitman and death threat; Wisniewski’s depiction of teacher being shot).  The Layshock principal was merely mocked as fat, the Snyder principal was depicted as a pedophile and a danger to other students, creating fear in the minds of some students and parents.  Until the Supreme Court says otherwise, that is all the guidance we have.

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