Continuing a trend of attempting to punish students for speech on the Internet, two New York high school students were arrested in May for harassment in connection with their off-campus Web site.
Prosecutors later decided not to prosecute the students, but police are refusing to return a disk containing the last remaining copy of the site to the students’ attorney.
Police declined to release the names of the two 18-year-old males, citing their ages. In New York, 18 to 21 year-olds can be prosecuted as juveniles and thus may remain anonymous.
The students were arrested by the New Castle Police after school officials discovered the site, which reportedly contained personal information about the sexual exploits of several of the their female classmates.
A spokeswoman for Westchester County district attorney’s office said the students’ Web site did not fit the definition of harassment.
‘While the material is offensive, the content does not rise to the level of criminal conduct,’ spokeswoman Marianne Walsh said. ‘There’s not sufficient evidence to support a prosecution.’
Police said the site was password-protected and contained personal information about several girls at Horace Greeley High School in Chappaqua, including rumors about their sexual habits. Police showed the site to the girls whose information appeared on it, and several said they were disturbed by the content, according to news reports.
School officials suspended the Horace Greeley students for five days, saying the punishment was in connection to an undisclosed infraction on campus and not for the Web site itself. Superintendent Donald Parker said the school has the right to discipline students for actions that they commit on campus, adding that school officials called police when they thought the site was criminal.
The students ‘went against the code of conduct on campus and received appropriate discipline,’ Parker said.
The young men’s attorney, Bruce Bendish, said his clients admitted using school computers to set up the site on a commercial server, but he questioned administrators’ assertions that they were not punished for the content of the site.
‘We all know what the basis of this is,’ Bendish said.
The students graduated from the school named for legendary reporter Horace Greeley in June and face no further punishment for the site. However, police are unwilling to return the only remaining copy of the site to the students. Brendish said his clients are still debating what, if any, legal action to take.
The case is one of only a few where a student’s off-campus Web site has resulted in criminal charges. In Utah, a high school student is challenging charges of criminal libel for calling his principal ‘the town drunk’ on his Web site. (See Defamation.)
More common are cases where administrators suspend students for speech that occurs off school grounds, often that which is critical of classmates, teachers or the school itself.
In Pennsylvania, a Pittsburgh area student was kicked off his school’s volleyball team for comments he made on an Internet message board. When a federal court ordered Jack Flaherty to be reinstated, the school disbanded the team and forfeited the remainder of the season.
Flaherty’s attorney, Vic Walczak, said the comments amounted to no more than ‘trash talk’ about players of opposing teams, and could not be grounds for discipline. Walczak is seeking a permanent injunction against the school to prohibit officials from disciplining students for off-campus speech.
Meanwhile, a New York student encountered a different reaction to a Web site he created that allowed students to rate and make comments about their teachers.
When the faculty at Stuyvesent High School found out about junior Gary He’s site, Stuynet.com, some teachers pledged not to write any letters of recommendation to colleges on behalf of He’s entire class.
He reluctantly disabled the teacher comment section of his site, instead hosting a discussion about the issue of evaluations. The site’s banner now reads ‘shame on stuy: no evaluations = no respect.’
Most courts have come down on the side of students in cases of off-campus speech, most notably in the 1979 case Thomas v. Granville Central School District decided by the U.S. Court of Appeals for the Second Circuit. There, a federal appeals court ruled that four students could not be suspended for distributing an off-campus newspaper.
Even though the students in the Thomas case used school typewriters to write some of the articles, the court found that it was essentially an off-campus paper and outside the control of the administration.
‘[T]he First Amendment forbids public school administrators and teachers from regulating the material to which a child is exposed after he leaves school each afternoon,’ the court said. ‘Where ‘ school officials bring their punitive power to bear on the publication and distribution of a newspaper off the school grounds, that power must be cabined within the rigorous confines of the First Amendment, the ultimate safeguard of popular democracy.’