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Laura Hodes

Schools' Suits Against Students Who Mock Them Online


Friday, September 24, 2009

The rapid rise in popularity of sites like Facebook and Twitter has made it easy for students to bypass the traditional means of communicating and commiserating with a wide audience of other students: the school newspaper. The faculty newspaper adviser could control the content of each issue of the newspaper before its publication. But now, there has been a rise in "electronic harassmentor suck sites," through which students directly create web sites to mock a school or its teachers – without any gatekeeper present to exercise editorial control.

In the latest such lawsuit, the Salon Professional Academy -- a cosmetology school in Elgin, Illinois -- is suing student Nicholas Blacconiere and a John Doe in Kane County Circuit Court. The Academy seeks $50,000 for emotional damages that it alleges were caused by defamatory comments on a Facebook page Blacconiere created. On the page, Blaconniere solicited students to post their comments on the school and its teachers, with the following message: "Dont be afraid to post comments on whats going on, this is yor voice too." (Errors in original.) Blaconniere also himself posted crude messages about teachers.

The next hearing in the case is scheduled for Oct. 15. Since the law in this area is unsettled, the court's ruling could have far-reaching effects on how free students are to create virtual soapboxes on the Internet.

In this column, I'll take a look at some recent rulings in lawsuits involving students who have created websites mocking their schools or teachers, and comment on where precedent in this area law is, and should be, heading.

The ACLU Successfully Defends a Student's Parody of a Principal

In the case of Layshock vs. Hermitage School District, the ACLU filed suit against the Hermitage School District for suspending high school senior Justin Layshock for ten days because he created a MySpace parody of his principal. In addition, the school administration ordered Layshock to finish high school in the Alternative Education Program, and forbade him from attending his own graduation.

On July 10, 2007, a federal district judge ruled that the school's suspension violated Layshock's First Amendment rights, and ordered a jury trial to determine whether Layshock is entitled to compensatory damages. The district court found that "[t]he mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web. Public schools are vital institutions, but their reach is not unlimited."

In reaching its decision, the court looked to the Supreme Court's 1969 decision in Tinker v. Des Moines Indep. Cmty. Sch. Dist., which held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," but crafted a test that allowed school administrators to punish student speech in some instances. Notably, the court found that the Tinker test applied even to off-campus behavior like Layshock's that targeted a school or its teachers.

In particular, the court noted and applied several important holdings from Tinker: Courts must defer to school administrators' determinations regarding whether student behavior within their supervision merits punishment. Administrators need not wait until a "substantial disruption" has already occurred to take action, but may act upon a "specific and significant fear of disruption." Yet, "a mere desire to avoid discomfort or unpleasantness will not suffice." A school must point to a "well-founded expectation of disruption," based on evidence such as the fact that past disruptive incidents arose out of similar speech.

Tinker also requires a sufficient causal nexus between the student's speech and the fear of substantial disruption of the school environment. In this case, the district court found no such nexus.

The school district has appealed to the U.S. Court of Appeals for the Third Circuit.

In Another Case, the Student Lost, With the Court Finding a Risk of Disruption

In contrast, in May 2008, the U.S. Court of Appeals for the Second Circuit applied the Tinker test in Doninger v. Niehoff, and sided with the school.

The case arose after school officials barred a student from running for senior class secretary, after she called school personnel "douchebags" and made other derogatory remarks about them on her off-campus blog. Apparently, she was angry at officials for canceling a school concert that she and others on the student council had organized.

The student filed suit, and moved for a preliminary injunction compelling the school to void the election, and either hold a new election, or grant her the same title, honors, and obligations as the person elected.

The Second Circuit upheld the district court's finding that the blog post had "created a foreseeable risk of substantial disruption" at the school and thus could be a valid basis for punishing the student. In so doing, it cited the Supreme Court's 1986 ruling in Bethel Sch. Dist. No. 403 v. Fraser. There, the Court held that a school may regulate "plainly offensive" speech — that is, speech that is "offensively lewd and indecent" — in furtherance of its important mission to "inculcate the habits and manners of civility," both as values in themselves and because they are indispensable to democratic self-government.

The Court reasoned in Bethel that "[t]he undoubted freedom to advocate unpopular and controversial views in schools must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior." It also concluded that it was "a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse."

The next question for the court became, then, whether Fraser, Tinker, and other Supreme Court free speech precedents apply to "off-campus" speech, such as blog postings. The court held that they do. In support of its holding, the court noted that it was reasonably foreseeable that the posting at issue would reach school property, as the district court had found that "the blog posting directly pertained to events" at the school, and the student's intent in writing the posting was specifically "to encourage her fellow students to read and respond."

Thus, as in the Layshock case, the court applied the Tinker test. But unlike there, the Second Circuit found a basis for a reasonable fear of substantial disruption based on the blog posting. Accordingly, the Second Circuit held that the school did not infringe the student's rights in banning her from the election.

How Will the Court Likely Rule in the Blacconiere/Salon Professional Academy Case?

These two precedents will likely influence the court's ruling in the Blacconiere case, with which I began this column. There, too, the court is likely to ask if the school possessed a reasonable fear that the blog posting would cause a substantial disruption.

It is clear that Blacconiere's intent in creating the Facebook page was to encourage fellow students to read and respond, as was true in the Doninger case, and that may be a strike against him. Yet the school's brief complaint – which attaches the Facebook page -- does not cite any facts that would support a reasonable fear of substantial disruption of school activities. If anything, the complaint cuts against substantial disruption – for the attachment reveals that only ten people were privy to the Facebook page, suggesting that damages for a defamation claim would be low, and that disruption of school activities would likewise be minor.

Ultimately, however, based on these cases, students should know that there is a strong risk that courts might hold that the First Amendment does not protect their off-campus postings when they target their school, its personnel, or their fellow students. Thus, the wisest course is for students to think long and hard before writing quickly and emotionally on such topics on the Internet, as their words may come back to haunt them .

Laura Hodes is a writer and lawyer. She blogs at

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