Tangled Web


Courts conflict in efforts to define schools' power over online speech





It had been a long day at school for Avery Doninger. Her principal, Karissa Niehoff, told her about scheduling conflicts the school was having with “Jamfest” — a battle of the bands contest Doninger worked to coordinate as junior class secretary for her Burlington, Conn., high school. Doninger believed because of those conflicts, the event would be effectively canceled.

Near tears as she left the principal’s office, Doninger said she thought about the event all afternoon during talent show auditions and all through rowing practice that evening. When she finally got home from Lewis S. Mills High School, frustrated and upset, Doninger needed to vent. But her mom was not home from work yet. So she went to into her “office” — a cozy, renovated closet adorned with posters of her favorite musical artists.

Accessing her online diary, Doninger wrote on April 24, 2007, that Jamfest was going to be canceled “due to the douchebags in central office.” She encouraged those who read her entry on livejournal.com to write or call then-Superintendent Paula Schwartz’s office about the event “to piss her off more.”

Her school — nearly three weeks after the blog entry — punished her for it. Administrators said Doninger used vulgar language to convey incorrect information because the event ultimately was not canceled, just held at a later date. They said her plea for others to call the officials to “piss” them off was inappropriate for a class officer and removed her from her post, and also prevented her from serving her senior year.

But Doninger and her mother thought the school administrators had no right to control her behavior at home. They filed a lawsuit in July 2007, charging that the school abridged Doninger’s First Amendment rights when it punished her for what she said on the Internet.

In a preliminary motion, a federal district court in Connecticut disagreed, refusing to reinstate Doninger as class secretary while court proceedings were ongoing. The court noted Doninger’s punishment was relatively minor and only affected her extracurricular role as a student leader.

The 2nd U.S. Circuit Court of Appeals followed suit in May, affirming the district court decision and ending Doninger’s effort to be reinstated as a class officer before she graduated.

All because of what she said on the Internet. And Doninger is not alone.

Conflicting precedents

Despite the explosion in the popularity of social-networking sites and blogs — and in the number of disciplinary sanctions doled out to students for online expression — the Supreme Court has yet to decide a student Internet speech case. So lower courts have been left to their own, often contradictory, interpretations in mulling how far school authority extends.

“Avery’s case was an example of a frequent trend among public schools of punishing students for expression that took place off campus, and we find that to be very disturbing,” said Josh Wheeler, the associate director of the Thomas Jefferson Center for the Protection of Free Expression. “When school officials start punishing students for expression that has nothing to do with school or is off-campus expression, we think it actually sends a terrible lesson about the role of speech in our society. How can we instill in the next generation an appreciation for the value of free speech if our educators act in a way that demonstrates little regard for it?”

Sara Rose, an American Civil Liberties Union attorney in Pennsylvania, has the same concern.

“It’s the same stuff kids have always done and said, but instead of passing it around outside school or at the mall, they’re putting it up on the Internet,” said Rose, who is representing student Justin Layshock in an online speech case. She also is a former Student Press Law Center publications fellow. “But the fact that it’s accessible to more people does not mean that it should be more limited.”

Layshock, a former student at Hickory Hill School in Hermitage, Pa., got himself in trouble on MySpace when he was a senior. He was suspended for 10 days in 2006 after a mock MySpace profile he made of his principal, Eric Trosch, came to the attention of school faculty.

Using a computer at his grandmother’s house, Layshock made a profile that said Trosch used drugs and kept a beer keg behind his desk. The profile did not threaten violence or otherwise encourage disturbance at the high school, so he sued the school, claiming the discipline was unjustified.

Layshock had better luck in court than Doninger. A federal judge declared his punishments unconstitutional in July 2007 because the profile was not created at school or during school hours, and when students viewed it at school it did not cause a “substantial disruption.”

The U.S. Supreme Court said in a 1969 decision, Tinker v. Des Moines Independent Community School District, that students are allowed to express themselves freely unless their actions cause a “material and substantial disruption” of school operations or invade the rights of other students. Defining “substantial disruption” has become the linchpin of cases involving student speech in the four decades since the Tinker decision.

Schools “are fairly creative with coming up with different disruption rationales,” said David L. Hudson Jr., a scholar at the First Amendment Center. “They essentially come up with any kind of disruption. School board attorneys are becoming fairly familiar with arguing under the Tinker standard.”

Still, it is not clear whether the Tinker decision — originally intended to address on-campus speech — applies to online expression. Hudson anticipated the absence of a clear authority for online student speech cases would ultimately result in the Supreme Court becoming involved, perhaps in Doninger’s case.

“It is a numbers game, and there are many more decisions by both state and federal courts now across the country,” Hudson said. “Doninger provides an excellent vehicle, because of its interesting facts, heightened media coverage and the fact that it is a federal appeals court decision. Obviously, it is a long shot, but sooner or later I think it is inevitable given the muddled state of this area of the law.”

And the accessibility of the Internet in classrooms, making information all the more readily available, is effectively muddling what constitutes “disruption.”

In Layshock’s case, the school district asserted that the mock profile constituted a “substantial disruption” because the school had to shut down student access to the computer system after students’ reading other unapproved Web sites, like Layshock’s, disrupted the day-to-day operation of Hickory High School.

U.S. District Judge Terrence McVerry found otherwise.

“The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the world-wide web,” McVerry wrote in the ruling favoring Layshock. “Public schools are vital institutions, but their reach is not unlimited.”

Alternate standards

Courts have ruled, though, that schools have legal arguments beyond the Tinker standard. For example, the Supreme Court has said that administrators can regulate school-sponsored speech or speech that they perceive to be a true threat.

Several students at Braden River High School in Bradenton, Fla., were disciplined in June for writing and singing controversial rap lyrics after another student downloaded the music from MySpace and played it for classmates at school. A teacher overheard the music — which described violence against school officials and the principal’s daughter — and administrators doled out punishments ranging from detention to prohibiting three of the seniors from walking across the stage at the graduation ceremony.

A middle school in Weedsport, N.Y., used this “true threat” rationale to justify punishing Aaron Wisniewski in July 2001. The eighth grader had shared an AOL Instant Messenger buddy icon with friends that showed a gun shooting at a person’s head with splattering red dots and the caption “Kill Mr. VanderMolen,” Wisniewski’s English teacher. Wisniewski sued his school district, but the 2nd U.S. Circuit Court of Appeals affirmed a lower court’s dismissal, holding that threatening out-of-school speech could be punished.

Administrators also can censor lewd or vulgar speech that occurs in certain campus settings, the Supreme Court said in 1986 in Bethel School District v. Fraser. In that case, high school senior Matthew Fraser was punished for a public address he gave at school, nominating a classmate for office, that was filled with sexual innuendos. Some schools have attempted to extend the Court’s Fraser reasoning to online speech that makes its way onto campus.

The Hermitage School District is appealing its district court loss to the 3rd U.S. Circuit Court of Appeals, arguing administrators could regulate what Layshock said because it was lewd, vulgar and plainly offensive school-related speech.

But First Amendment advocates say Fraser’s on-campus speech is a long way from Layshock’s online activity — which they say schools have no jurisdiction to regulate. The Pennsylvania Center for the First Amendment at Penn State University and the Student Press Law Center have joined Layshock’s case, filing a joint friend-of-the-court brief in support of his free-speech rights.

Frank LoMonte, executive director of the SPLC, said he did not expect a ruling in the case until 2009. And then, “it would be crazy” for courts to try to extend the Fraser case into the setting of a student’s personal Web page, he said.

“There is no way that a reasonable reader looking at a student’s Facebook or MySpace page, or a student’s off-campus news blog, could confuse those Web sites for official speech by the school,” he said. “So the rationale for lowering the censorship bar in Fraser has no relevance to off-campus, online speech.”

LoMonte added his fear is not that students will lose the right to insult the principal but that they will lose the right to publish genuine news that accurately gives a negative image of the school.

“All good journalism prompts discussion, and some of the discussion may even be legitimately critical of the principal,” he said. “It can’t be the law that off-campus speech critical of the principal, or that causes other people to think less of the principal, is outside the protection of the First Amendment.”

Attorneys for Layshock have argued the mock profile he created was not at all an attempt at serious journalism, but instead was a parody — protected speech under the First Amendment. Courts have defined parody as speech so extreme that no reasonable person would think it was intended to be true.

Beyond school discipline

The First Amendment protects student speech only against suppression or retaliation by state officials wielding state power. School employees who believe their rights were violated by online student speech can still take legal action as private citizens — as Principal Trosch has done in suing Layshock for libel, a separate ongoing case.

Other educators targeted by online pranks have similarly begun considering private legal remedies.

After students created a fake MySpace profile for Edinburgh High School Spanish teacher Trent Shupperd, his job was on the line. He told the Indianapolis Star in May that administrators confronted him with an online conversation he supposedly had with a female student that contained sexual overtones. Shupperd told the local paper the school’s administrators and police determined three current students and one former student set up the profile for Shupperd.

“I am considering my options and how best to move forward,” Shupperd said in an e-mail to the SPLC in June. “All options are open, and I am seeking legal guidance and the guidance of the teacher’s union on how best to proceed.”

Anna Draker, an assistant principal at Clark High School in San Antonio, sued two students and their parents in 2006 over a MySpace page that said she was a lesbian and contained “obscene comments, pictures and graphics,” according to her lawsuit.Draker’s attorney, Murphy Klasing, said the MySpace spoof devastated the mother of two. And that sort of material should not be protected, he said.

“If a person gets on their own MySpace page and makes fun of another individual, I think that is protected, even though it’s vulgar and might be obscene — it’s protected because it’s their opinion. And an objective viewer has perspective that this is coming from a student,” Klasing said. “But when you get on and create a fake profile in the likeness of another individual, you’re perpetrating a fraud of another person.”

Klasing said a judge threw out the initial defamation lawsuit against the students because he determined the claims were not disparaging, so Draker sued for intentional infliction of emotional distress. The judge threw out that claim as well. The case is before Texas Court of Appeals.

The Bexar County District Attorney also filed a criminal charge against one of the students involved in creating the profile. He received conditional, informal probation.

The Indiana Supreme Court in May threw out a minor delinquency petition filed against a Greencastle Middle School student, identified as “A.B.”, who had posted a vulgar tirade about her principal on a MySpace group she created. The state trial court determined the girl was “delinquent” because it said her postings would be considered criminal harassment if committed by an adult.

The state appeals court reversed that decision, concluding her postings were political speech protected by the First Amendment. The Indiana Supreme Court also ruled for the student, but ruled instead that because the principal was not among the MySpace subscribers authorized to view the group, the criticism was not directly aimed at him.

Criminal charges of identity theft can also be pursued if someone wrongfully obtains and uses another person’s personal data in some way that involves fraud or deception, typically for economic gain.

Tim Puntarelli, dean of students at Roncalli High School in Indianapolis, had to take Facebook to court in May so that he could learn who had set up a fake profile using his name.

Jay Mercer, an attorney for the Archdiocese of Indianapolis who is representing Puntarelli, said the account user sent friend invitations that would “not be appropriate coming from a dean of students” and also sent messages wrongly indicating he intended to discipline certain students.

A district court judge ordered Facebook to turn over information identifying who created and managed the account before the social-networking site took it down on school officials’ request. Facebook and MySpace both have terms of use prohibiting users from creating a false identity or attempting to use another’s account.

No matter the legality of the expression, there is an argument that school officials do not have the power to act as parental authorities when dealing with off-campus behavior.

Avery Doninger’s mother said she “grossly resented” the school officials stepping in to punish her daughter for the blog.

“Avery’s behavior happened at home at a home computer at 9:30 at night,” Lauren Doninger said. “I am perfectly capable of disciplining my children. I did not need the school district to reach into my home and take over my responsibility.”

She also questioned whether the administrators were sending the right message about civic awareness.

“I understand Avery may have not gone about it the right way, but the intention to make noise, create public awareness, rally public support for a public issue — thank God we have students who are doing that,” Lauren Doninger said. “Passivity and apathy are so much more worrisome than kids who are learning the skills of political and social organization and demonstration.”

Along with those skills, students must also be trained about online responsibility, said Warren Watson, director of J-Ideas, a First Amendment institute at Ball State University.

“Students need to remember what they post online, unlike a generation ago when people wrote in diaries, what they do on their social networking MySpace or Facebook, is available for everyone to see,” he said. “… This concept of digital free speech is really the new battleground of the First Amendment, and we must determine where the line is drawn in cyberspace.”


Fall 2008, reports