Can Schools Punish Students for Posting Offensive Content on MySpace and Similar Sites? Often, the Answer Is No, Unless The Posting Materially Disrupts School Activities

The past few years have seen the growth of popular social networking websites for students: Three prominent examples are MySpace.com, Facebook.com, and Xanga.com. And within and outside such sites, student blogging, too, is wildly popular: About four million teens - 19% of 12- to 17-year olds who use the Internet - have created some sort of blog, according to a November 2005 Pew Internet & American Life Project study.

Unfortunately, however, such sites and blogs - despite all the good they've done for some students -- have also created serious problems for other students, educators and even law enforcement. No wonder, then, that many schools have blocked students from accessing such sites while on campus.

Students need to remember that the law applies in cyberspace too: Threats and harassment are just as illegal online as offline. Defamation or libel can occur on the Internet as well as in a printed newspaper. And when it comes to evidence of crime, the content of a personal website may be even more damning, in some cases, than a fingerprint.

But what about instances when student postings on networking sites aren't illegal, nor do they evidence or enable a crime - but, nevertheless, the postings upset school administrators or faculty?

In such cases, as I will explain, the First Amendment will protect many student postings, as long as they do not "materially disrupt" school activities - and as long as the students attend public, not private, schools.

MySpace.com: The Basics

I'll begin by giving readers the basics on MySpace.com and Facebook.com.

MySpace.com is currently the top social networking site on the web. It boasts up to 70 million registered users, of whom 25% may be teenagers.

Last July, Rupert Murdoch's News Corp. bought MySpace for $580 million. Over the past year, traffic on MySpace has grown 318% in the last year, to 37.3 million visitors in February.

MySpace says users must be at least 14. (The federal Children's Online Privacy Protection Act requires websites that target children under 13, to obtain "verifiable parental consent" before the kids can use the site; MySpace apparently didn't want to bother with the consent requirement.)

Free and ad-supported, MySpace allows users to post photos and music, and to stop by each other's sites to meet and mingle or hook up. Students can easily locate their classmates; MySpace maintains folders for various high schools and universities. Thus, MySpace can end up, in effect, hosting a virtual community that parallels a particular school or college - and often does.

But MySpace users need not belong to that community: If they so choose, they can customize their sites -- blocking anyone but friends, for example. In addition, the site encourages users who feel they are being threatened by another member, to block that member and contact the police.

MySpace also reserves the right to terminate a user for engaging in threatening, lewd, or otherwise inappropriate behavior. And it will remove fake profiles by impersonators - a remedy that can be used by faculty, administrators or students who discover fake profiles claiming to be theirs.

Facebook.com: The Basics

Whereas MySpace.com is especially popular with teenagers, Facebook.com is especially popular with college students. Indeed, Facebook.com has claimed that it is used by 65% of undergrads at four-year colleges and universities. That amounts to more than 6.1 million students from more than 2,100 schools.

Last September, Facebook expanded its reach to high-schoolers. At last count, a reported 900,000 had signed up.

Members can view full profiles of students from their own school. They can also search for other classmates by name, but if they locate them, they can see only the student's name, school and photo. To access a full profile, they must seek permission to be added to the student's list of "friends." Just as they can on MySpace.com, members also can impose further privacy limits -- allowing access only to a chosen circle of friends.

Cases Where Postings Violate the Law, or Provide Evidence of Its Violation

These sites - though a boon to students in many ways - have also raised their share of problems. And some of the problems may also involve torts, or violations of the criminal law.

In some instances, students engage in cyber-bullying -- making critical remarks about other students or teachers. If these postings are factual, false, and damaging, they may count as defamation. The sites cannot be sued: Under a key provision of the Communications Decency Act, web intermediaries - those who merely allow others to post their own comments and photos - are not liable for defamation. But the authors can be.

Sometimes postings may be evidence of law-violation: In photos, underage subjects may be shown in sexually provocative poses, or shown smoking or drinking, or holding firearms. For instance, a 16-year-old boy in Jefferson, Colorado was arrested after police -- having seen pictures on his MySpace page in which he was holding handguns - found the weapons in his home. And in late April, police reportedly intercepted a Columbine-style plot in Kansas on the basis of a threatening email posted on MySpace.com.

And sometimes postings may themselves violate the law - making criminal threats, or constituting harassment. In Costa Mesa, California, twenty students were suspended from TeWinkle Middle School for two days for participating in a MySpace group where one student allegedly threatened to kill another and made anti-Semitic remarks.

Finally, sometimes postings can be an instrumentality of crime. Police have investigated allegations that teens were sexually assaulted by men they met on social networking sites. Indeed, the website Mycrimespace.com claims that various arrests of sexual predators are connected to users who have contacted their victims via MySpace.com

Cases Where Postings Violate School Rules - Do Students Have a First Amendment Defense?

Even if postings don't violate the law - or evidence or enable its violation - they may still break school rules, or evidence that these rules have been broken. For example, a gay student was recently expelled from a Christian university after the university found photos of him in drag on his MySpace.com page. The university said the student had violated its code of conduct, because his behavior was not consistent with Biblical values.

Moreover, even if rules are not broken, the postings may still trigger administrators to want to take punitive action such as suspension, expulsion, or putting a note on the student's record that may harm his or her chances of college admission, or on the job market.

Do students facing such actions have a First Amendment defense? Private high school students may be out of luck: their schools are not "government" actors, and the First Amendment does not apply.

(Also out of luck are students who are foolish enough to publicly criticize schools before they attend them: The Admissions Dean at Reed College in Portland, Oregon has noted that one application got rejected after disparaging Reed on the blogging site LiveJournal.com.)

In contrast, admitted students at public high schools, public colleges -- and possibly private colleges that receive government money -- may enjoy the First Amendment's protection for their online postings.

According to the U.S. Supreme Court, public school students don't "shed their constitutional right to freedom of speech or expression at the schoolhouse gate." Accordingly, in Tinker v. Des Moines Independent Community School District, the Court said public high school students had a First Amendment right to wear black armbands to class to protest the Vietnam War.

Student free-speech rights can be limited when the speech "materially disrupts classwork or involves substantial disorder or invasion of the rights of others" - and the armband-wearing, the Court said in Tinker, didn't meet the test.

What kind of limitations have been upheld?

In Bethel School District No. 403 v. Fraser, the Court ruled that a high school student whose student-government-nomination speech included "obscene, profane language or gestures" could constitutionally be suspended.

And in Hazelwood Sch. Dist. v. Kuhlmeier, the Court okayed censorship of a school-sponsored newspaper that was "reasonably related to legitimate pedagogical concerns."

But the Hazelwood ruling was limited in important ways. It applied only to censorship of "school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school" - and it did not apply to even school-sponsored publications that had been opened as "public forums for student expression." (Finally, it's clear the standard would not apply to college newspapers.)

Cases In Which Students' First Amendment Arguments Won - and Lost

Let's look at a few specific cases.

In 2000, a federal court in the Western District of Washington State held -- in Emmett v. Kent School District -- that public school officials could not punish a student Nick Emmett for postings on a website, referred to as the "Unofficial Kentlake High Home Page." Emmett and his friends - after being given the task of penning their own obituaries, in a creative writing class - had run afoul of school officials by posting a parody obituary for another classmate.

The court pointed out that at no time were school funds, computers, or involved with the website. Accordingly, the court held that "[a]lthough the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school's supervision or control."

Most courts to address such cases have agreed: When the publication originates off campus, a student has a First Amendment right to make even unpleasant, critical remarks.

Occasionally, however, courts have applied Tinker's "material disruption" standard even to off-campus speech.

For example, in 1998, in Beussink v. Woodland School District, a federal court in the Eastern District of Missouri inquired whether a public high school student's site using vulgar language to criticize his school and its faculty fulfilled Tinker's standard. (As in the Emmett case, the site was created outside of the classroom, with the student's own computer and Internet connection; the court noted, however, that a classmate had viewed the site at school.) The court ultimately held that the site was First Amendment-protected because it was not materially disruptive.

Likewise, in 2002, in J.S. ex rel H.S. v. Bethlehem Area School District, the Supreme Court of Pennsylvania applied Tinker even though a website was not created at school, on the ground that the site "was aimed at a specific school and/or its personnel" and was "brought onto the school campus or accessed at school by its originator."

And there - unlike in the Missouri case - the court found a "material disruption" occurred: The site included an image in which a teacher's decapitated head dripped with blood and a request that visitors contribute $20 for a hit man. The site also showed an image of the same teacher's face transforming into Hitler's.

The "hit man" request came perilously close to a criminal threat or solicitation - a fact of which the court no doubt took notice. As noted above, when it comes to First Amendment protection here, we're talking about speech that isn't criminal: If a student publishes a physical threat toward another student, or a teacher or administrator, the Constitution won't protect that.

Criticism, though, is fair play. Just this month, New Jersey's Oceanport School District this month paid a $117,500 settlement to 17-year-old

Ryan Dwyer after a district court ruled that it had violated his First Amendment rights by punishing him for a website blasting his middle school and some faculty members.

Mr. Dwyer wrote, among other things, "MAPLE PLACE IS THE WORST SCHOOL ON THE PLANET!" and "The Principal, Dr. Amato, is not your friend and is a dictator."

These messages - classic statements of opinion - weren't defamatory. They received full First Amendment protection.

How Can Students Learn the Rules? A Practical Guide Is Available

The Electronic Frontier Foundation (EFF), a San Francisco-based digital-rights advocacy group, recently released a legal guide for student bloggers, which provides practical guidance by addressing questions such as,

"So can I criticize teachers on my blog?"

The EFF is critical of the courts that have applied Tinker's "material disruption" standard to privately-written student blogs and web pages. But it rightly warns students that this standard could be applied - especially if their comments are very outrageous and offensive in the way they target teacher or peers. The EFF guide also advises students to cool off before posting hateful comments or very sensitive private details about themselves and their classmates.

Meanwhile, those students, teachers, and administrators who feel they've been made the target of MySpace posting should remember that while they may not always have a legal remedy, they may have a practical one: They can ask the site to de-post the offensive material - and if it does, users can't invoke the First Amendment when they complain.

As a private entity, MySpace isn't obligated to honor users' First Amendment rights. And under that Communications Decency Act (CDA) provision, it can completely feel free to remove postings at its discretion: The very reason the CDA allows sites to operate liability-free, is to make sure they can police their sites for postings they find harmful or offensive, without fear of incurring liability as a result of doing so.