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Off-Campus Speech v. School Safety

Minutes after shots rang out at Santana High near San Diego on March 5, cable TV news shows filled up with experts ticking off the warning signs that might predict the next student to go berzerk. The FBI's list of 'risk factors' for school shootings reads like a definition of a teenage Internet geek: 'Inappropriate humor,' writing about 'committing violent acts,' and 'no limits to, or monitoring of ... Internet use.'

But parents who worry that suspicious online activity is going unpunished haven't checked out the Student Press Law Center's breaking news page lately. In the 30 days before Santana, for example: SchoolRumors.com, a popular anonymous bulletin board where teens from Los Angeles' San Fernando Valley called each other 'fags' and 'sluts,' was shut down March 2 by its Internet service provider after one mocked girl reportedly became 'very suicidal.' A 13-year-old eighth-grade girl at Von E. Mauger Middle School in Middlesex, New Jersey, was charged Feb. 16 with 10 counts of making 'terrorist threats' against classmates she put on a 'People2Kill' hit list. She was suspended indefinitely and put under psychiatric evaluation. A 13-year-old eighth-grade boy from John F. Kennedy Middle School in Bethpage, New York, was suspended from school and investigated by police after posting the names and photographs of 36 classmates on his personal 'hit list,' and warning that he would 'attack when it gets warmer.' The New York Post reported February 18 that a 12-year-old Halsey Junior High student in Queens was suspended for two days because of his Web site's depiction of teachers as 'sluts,' strippers, and engaging in oral sex. The paper said that the local teachers union filed a grievance, and the student's parents -- also educators -- accused the school of overreacting. Seventeen-year-old senior Aaron Fiehn of Belleview High in Ocala, Florida. was suspended for 10 days February 14, for creating a Web site that used 'vulgar language' to criticize the school. After the American Civil Liberties Union got involved, Fiehn was reinstated four days later. The North Thurston County School District in Washington agreed February 20 to pay former Timberline High student Karl Beidler $62,000, two years after expelling him for pasting a head-shot of an assistant principal onto an image of Marge Simpson having sex with Homer. A Superior Court judge had ruled last July that the school's punishment violated Beidler's right to off-campus free speech. The school district in Rolla, Missouri, agreed to an unspecified out-of-court settlement with former Rolla High student Dustin Mitchell, who was suspended in 1999 for 10 days and given 42 hours of community service for answering 'Yes!' on an Internet bulletin board to a question about whether a Columbine-type shooting could happen at his school, the SPLC reported February 8. The ACLU had filed suit on Mitchell's behalf last October.

Meanwhile, anyone with a television and some free time Monday nights can watch a controversial student Web publisher on Fox's randy new high school drama Boston Public. Character Sheryl Holt, whose Holt 45 Web site is filled with sex gossip and unflattering animations of various teachers, was suspended late last year, and she even filed a lawsuit against her school.

The demographic bubble of Americans born between 1975-84 is rapidly becoming known for three things: tarty pop stars, school shootings, and total Internet penetration. That volatile mix has helped create an entire legal category -- inflammatory off-campus Internet speech by minors -- that virtually didn't exist three years ago.

'It's not unusual for us to hear of two or three incidents in the course of a week or ten-day period now, where a few years ago we maybe would hear of one a school semester,' said Student Press Law Center Executive Director Mark Goodman. 'And the reality is that we're only hearing the tip of the iceberg -- I have no doubt that there are many other incidents that just never get reported.'

The SPLC is a four-person operation in Arlington, Virginia, that provides free legal advice, information and lawyer referrals to student journalists. The center and the ACLU are the only national organizations that intervene regularly on the side of trash-talking teens in their conflicts with schools over private Web sites. In the wake of Santana High's Charles Andrew Williams and his immediate copycats, now is probably not the most receptive time for the ongoing ACLU/SPLC campaign against school 'overreaction.'

'Any folks who say to me that schools have overreacted, need only look at the evidence,' said Edwin Darden, senior staff attorney for the National School Boards Association, a federation of 95,000 school board officials, just days before Santee. 'I think that it's incumbent on the school district to react ... especially since Columbine, since many of the things that might have been looked upon as the foolish pranks of a misguided youngster now can certainly result in deaths and destruction.'

THE EVOLVING LAW

Type 'High School Sucks' in Google and you'll get 414 responses, many (if not most) of them juvenile, mean and kinda funny.

But where to draw the line? Darden, when he advises school board officials, tells them there are basically three types of student Web site, each suggesting a different response: The first are 'offensive, obnoxious and insulting,' the second are all that 'plus some sort of veiled threat of violence, or of destruction of property,' and the third contain an 'outright blatant threat.'

When confronted with third-category sites, school districts 'need to respond, particularly when it's having a disruptive impact on learning,' Darden said. The second category is 'a little more difficult,' suggesting less heavy-handed measures, such as holding a parent-teacher conference, or making obscenity-shy Internet service providers aware of the site.

'But a lot of the run-of-the-mill sites are simply obnoxious, offensive and insulting, and nothing more,' he said. 'And at that point my advice to schools is, you just need to develop a thick skin.'

The National Education Association, a large teachers union, suggests a similar approach to combat what it calls 'an epidemic of Web pages where students ridicule, vilify, and even threaten to kill teachers.' In a January column in NEA Today, the NEA attorney Michael Simpson warns that schools have been burned in court for trying to punish private Web activity.

'But at a minimum, student off-campus cyberspeech is punishable where school officials reasonably believe it could disrupt the school, or where it seriously threatens or actually causes harm to teachers or others,' Simpson wrote. 'The still-open question is whether this authority extends to off-campus speech and whether school officials can punish students for comments made in cyberspace that are merely uncivil or disrespectful.'

Two basic Supreme Court rulings govern high school speech law: 1969's Tinker v. Des Moines, and 1988's Hazelwood School District v. Kuhlmeier. Tinker, which concerned students being suspended for wearing black armbands to school in protest the Vietnam war, established that a school cannot restrict expression on campus unless it can prove that the speech 'materially disrupts classwork or involves substantial disorder or invasion of the rights of others.' Hazelwood, generated after a school spiked articles from the school paper about divorce and pregnancy, rolled back some of Tinker's freedoms by giving administrators the right to censor -- on 'educational' grounds -- speech that comes as part of an educational activity.

Two lower-court rulings from 1969 and 1972 (Sullivan v. Houston Independent School District, and Fujishima v. Board of Education), affirmed students' rights to publish off-campus newspapers and even distribute them at school without administrative approval, as long as they did not materially interfere with school discipline. (For more on these cases and the evolving Web site case law, please read Andy Carvin's excellent rundown for the Benton Foundation).

Advocates on each side, naturally, differ over what these precedents signify for the Internet era.

'There isn't a single case, or even a series of cases, that sets out the principles -- that's what makes this so difficult,' said Darden.

SPLC's Goodman points out that students 'are legally obligated to follow the same legal rules that anyone else is,' covering libel, defamation, terrorist threats and so on. 'So there is a remedy when students have crossed the line,' he said. 'What the schools are saying is that we should have a venue for punishing expression that no other government agency has, even though this expression doesn't take place at school.'

The vast majority of what Carvin estimates as 'hundreds' of legal disputes over Web sites between students and schools over the past few years have been settled out of court. Of those that have produced rulings, in the words of education lawyer David Splitt, 'One thing is clear: Most of the time, when a principal or other official takes action against a student for something on the student's private web site, it is legally an overreaction.'

TECHNOLOGY ETHICS & LAW

The major cases were: Beussink v. Woodland R-IV School District. On February 17, 1998, Woodland High junior Brandon Beussink was suspended 10 days and ordered to take down his Web site, which called the principal an 'asshole,' and listed several reasons why the school was 'fucked.' With ACLU backing, Beussink sued the district to revoke the suspension, saying it violated his First Amendment rights. In December 1998, U.S. District Judge Rodney Sippel agreed, writing: 'Speech within the school that substantially interferes with school discipline may be limited. Individual student speech which is unpopular but does not substantially interfere with school discipline is entitled to protection.' The two sides settled on undisclosed terms in July 1999. Emmett v. Kent School District. In February 2000, Kentlake High basketball star Nick Emmett and another student were suspended five days for creating the 'Unofficial Kentlake High Home Page,' which contained mock obituaries of classmates and invitations to suggest who should 'die' -- or receive a new mock obituary -- next. The ACLU helped Emmett challenge the suspension in District Court, and Chief Judge John Coughenour quickly issued a temporary restraining order, ruling that 'the speech was entirely outside of the school's supervision or control,' and that the district presented 'no evidence that the mock obituaries and voting were intended to threaten anyone, did actually threaten anyone, or manifested any violent tendencies whatsoever.' The two sides settled five weeks later, with the school lifting the suspension, picking up $6,000 in legal fees, and paying Emmett $1. Karl Beidler v. North Thurston County School District. As mentioned above, in February 1999 Beidler posted some crude satire of the Timberline High vice principal gobbling Viagra and sodomizing a pig, and was promptly expelled. The ACLU filed suit two months later, and in July 2000, Superior Court Judge Thomas McPhee ruled the school violated Beidler's First Amendment rights, and failed to prove the site substantially disrupted school. Last month, the school district agreed to pay Beidler $52,000 in lawyer fees and $10,000 in damage. J.S. v. Bethlehem Area School District. This is the only major case where a student Web publisher lost -- and he lost big. When Justin Swidler was in eighth grade in 1998 at Nitschmann Middle School in Bethlehem, Pennsylvania, he made a Web site offering $20 for a hitman to kill his math teacher Kathleen Fulmer, depicting her as morphing into Adolf Hitler, and containing profane insults about school principal A. Thomas Kartsotis. Swidler was expelled in August, and his parents filed a First Amendment lawsuit in October against the school district. Fulmer filed a defamation lawsuit against the Swidlers in November 1998, and Kartsotis followed suit in May 1999. The family counter-sued.

The Pennsylvannia Commonwealth Court ruled against the Swidlers' original suit in July 2000, arguing that the Web site materially disrupted the educational process by making a teacher feel threatened. Then a jury awarded Fulmer $500,000 in damages for suffering 'invasion of privacy,' and six weeks later the Swidlers settled out of court with Kartsotis for an unpublished sum.

Aside from the cases that have been judged, the many out-of-court settlements have also contributed to the evolving legal climate for free speech versus school safety. Some key cases include: Newport High student Paul Kim received a public apology and restitution of a $2,000 merit scholarship in December 1995 from his school district in Bellevue, Washington, after officials withdrew college letters of recommendation to punish him for his satirical 'Unofficial Newport' site. Sean O'Brien of Westlake, Ohio, was given $30,000 by the Westlake School District in April 1998 to drop his federal First Amendment lawsuit, filed after officials suspended him 10 days for insulting his band teacher on his site. District Court Judge John Manos had previously ordered the school to reinstate O'Brien, and to stop trying to restrict his off-campus speech. O'Brien later died in a car crash. Brian Condradt of Carmel, Indiana, gave a negotiated $5,000 settlement and written apology last April to three Carmel High teachers who he had called Satan worshipers. The settlement ended a defamation lawsuit. Justin Redman of Jonesboro, Arkansas, settled a lawsuit with Valley View School District, allowing him to start 10th grade on time after his Valley View Junior High School suspended him the last 10 days of last year for posting a 'vulgar' parody of the school's official site. The settlement came just after a District Court judge issued a restraining order against the district.

WHAT COMES NEXT

Darden says the key issue from the schools' perspective as case law builds up will be to link the Tinker ruling to off-campus speech. 'In order to defeat the constitutional claim ... you have to start building your connections back. There has to be what they call a nexus between the off-campus activity and the on-campus discipline.'

Possibilities for linkage include: if a student called up the Web site at school, if the creator of the offending site learned HTML in a class, if students are talking about the site to the detriment of classwork, or if people were otherwise changing their on-campus behavior.

SPLC's Goodman doesn't see as much wiggle room around Tinker, the First Amendment, or the handful of disputes ruled on to date by the courts.

'They've all been pretty uniform in saying that when the expression occurs outside of school, and isn't produced using school facilities, school officials do not legally have the authority to punish students for those activities. The only exception to that is the Pennsylvania case,' he said.

The most interesting conflict on the immediate horizon is that of Ian Lake, a former student of Milford High in Beaver, Utah, who was actually jailed for seven days last May and charged with criminal libel for creating a parody Web site that called then-Milford principal Walter Schofield 'the town drunk.' Lake, who now lives in Palm Springs, California is the first person to be tried under Utah's criminal libel statute since 1987, and the first Internet publisher anywhere to face the charge. Lake's ACLU attorneys' attempt to get the law declared unconstitutional failed in December; meanwhile Schofield has filed a civil lawsuit, and Lake has declared intentions to counter-sue.

And, in one of the few cases where a controversial student hasn't shut down his Web site, Clayton Telles of Ostego, Ohio, is carrying on with his OstegoSucks.com, despite serving a 10-day suspension for it in October. He has hired a laywer to seek reversal of the suspension, laced his site with disclaimers and defiant links to ACLU free speech cases, and continued encouraging his fellow students to wear obscene T-shirts and insult 'skanks.'

'I started this site as a joke,' Telles writes in the 'My Side of the Story' section. 'But it has now elevated to a battle of freedom of speech.' Updated: January 31, 2002