Astute readers will probably have noticed that although we’re supported by Harvard Law School’s Berkman Center, Digital Natives has more of a sociological rather than legal bent. Not that these two spheres are disparate, of course, as this post will hopefully demonstrate. Another one of the great projects affiliated with the Berkman is the Citizen Media Law Project (CLMP), which offers legal guidance to people creating digital media.
Here, I’d like to take a look into the CMLP’s Legal Threats database and examine a few representative cases most relevant to Digital Natives: schools and Internet speech. It’s no surprise that students talk about school, and it’s certainly no surprise that students are now doing it online. With the forum for their words now so open, how much power do schools have in regulating what their students say online?

I won’t go into the obscure legal details here – there are other people much more qualified than me – but I do hope to lay out some outlines. This essay from the First Amendment Center provides an excellent (and longer) introduction to the issues and provides a good framework to keep in mind when evaluating these cases:

Is it on- or off-campus speech?
Is it a true threat?
Is it vulgar, lewd, or plainly offensive?
Is it school sponsored?
Can you predict a substantial disruption and invasion of other’s rights?

Hermitage School District v. Layshock (2006) – High school student Justin Layshock created a fake MySpace profile of his high school principal containing lewd and drug-related references. School officials, upon finding out about the site, blocked all computer access in school for five days and suspended Layshock. The court entirely ruled that the school was out of line because Layshock himself did not cause a substantial disruption.

Hudson High School v. Bowler (2005) – The Conservative Club at Hudson High School (HHS) put up posters advertising its first meeting that included a link to the club’s website, which contained video footage of beheadings in the Middle East as criticism of Islam. HHS’s Technology Director banned the website from all school computers due to the violent content on display, even though the website contained ample warnings. In court, it was ruled that this was a violation of First Amendment rights as the videos were only available to students “outside of school as a matter of conscientious choice.”

Weedsport Central School District v. Wisniewski (2001) – Eighth-grader Aaron Wisniewski’s instant messaging buddy icon depicted a pistol firing at a man’s head along with the words, “Kill Mr. VanderMolen,” referring to one of Wisniewski’s teachers at school. When school officials found out about the buddy icon, Wisniewski was eventually suspended for a full semester. The district court, later affirmed by the 2nd Circuit Court, ruled that the icon constituted a true threat, so the school did not violate Wisniewski’s free speech in undertaking disciplinary action.

Doninger v. Niehoff (2007) – When junior class secretary Avery Doninger was upset by the administration’s cancellation of a music festival, she vented out her frustrations online, calling the school officials “douchebags” in a Livejournal entry. The school then prevented Doninger from running for class secretary, and the Doningers filed suit in response. The court ruled that school officials were justified in their punishment because Doninger’s “blog was related to school issues, and it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it,” meaning that the post constituted on-campus speech.

The actions of these students are not really defendable, but neither they are that different from what was once whispered in hallways or scribbled into diaries either. Posting them on the Internet, however, gives them both more permanence and a wider audience.

Talking about these four very different cases together also seems a bit silly, as they run such a gamut of issues. Thus, it seems a blanket policy for all school-related Internet speech would not be feasible. The key, perhaps then, is not to be reactionary or overreaching in response. Might ignoring these comments even been better policy in some cases? Had the school officials in Hermitage v. Layshock not reacted so strongly, would we still be reading about them two years later?

The other part is educating students about the consequences of their actions. Teenagers will probably always be making the occasional misguided comment, but there’s no reason they can’t learn to be more prudent about their words and actions. For example, after the initial controversy, Avery Doninger set her livejournal to private. It can be hard to understand the far-flung consequences of an online comment, but both students and school administrators should better learn to better grasp the shifting boundaries of the digital age.

-Sarah Zhang

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