When Avery Doninger, then a junior at Lewis S. Mills HighSchool in Connecticut, thought her school was unfairly canceling a Battle ofthe Bands-style concert called Jamfest, she did what any 21st-centuryteenager would do: she spoke out, online.
“jamfest is cancelled due to douchebags in the centraloffice,” Doninger fumed in an April 24, 2007 post on LiveJournal.com. Sheencouraged readers who shared her outrage to “write something or call her[Superintendent Paula Schwartz] to piss her off more.”
Doninger was surprised by the reaction her post generated.
“I just kind of vented,” she explained in a 2007 interviewwith the SPLC.
But her “venting” led to a high-profile freedom ofexpression ruling – one of a string of federal court decisions during thespring and summer of 2011 that have reshaped the legal landscape for students’ability to publish online free from school control.
At least four federal appeals courts issued rulings duringthe first seven months of 2011 addressing the reach of school authority overstudents’ online speech.
In each of these cases, students published what theybelieved to be protected speech from an off-campus location. Every time, thestudents were punished by their school’s administration, arguing that thestudents’ speech substantially interfered with the educational process. Acentral issue in each case: Whether the Supreme Court’s 1969 Tinkerruling, which permitted schools to punish on-campus speech if it crosses theline of causing “substantial” disruption, can be applied to off-campus speechas well.
The battle being fought through these cases, and others likethem, will set the standard for student expression rights in the digital age.
Doninger v. Niehoff
At a meeting on April 25, 2007, the day after Doninger wroteher LiveJournal post, principal Karissa Niehoff, Doninger and several otherstudent council members negotiated a new date for the Jamfest concert. Thestudents agreed to send a clarifying email to members of the public they’dcontacted seeking to drum up calls and letters to the principal.
Doninger thought that would be the end of it. However, whenshe went to accept her nomination for class secretary (a post she had held forthe previous three years), Niehoff confronted her with the blog post and askedher to withdraw from the race for senior class secretary. Doninger refused, andNiehoff took her name off the ballot.
At a school assembly designed to allow students to makestudent government campaign speeches, which Doninger was not permitted to speakat, several of her friends wore shirts emblazoned with “Team Avery.” Niehoffdemanded the students remove the shirts while attending the assembly, and thatDoninger (who had a similar shirt in her backpack but was not wearing it)refrain from putting the shirt on.
In the end, Doninger won the election anyway throughwrite-in ballots, but Niehoff did not permit her to take the office, insteadawarding the position to the candidate with the next highest number of votes.
Lauren Doninger, Avery Doninger’s mother, filed a lawsuitagainst the school district on her daughter’s behalf, arguing that punishingAvery for what she wrote online away from campus infringed on her daughter’sFirst Amendment rights. She also alleged that preventing students from wearingthe “Team Avery” shirts violated the students’ First Amendment rights becausethe shirts were not disruptive.
“Because she’d done this at home on a home computer, it wasjust so outside the school’s jurisdiction,” Lauren Doninger told the SPLC in2007. “They should not be in the business of policing the Internet. That’s nottheir job. They have a big enough job already.”
In an April 2011 ruling, however, the 2nd U.S. Circuit Courtof Appeals found that the school district had been “objectively reasonable” inbelieving the blog post and shirts might cause a disturbance, grantingadministrators immunity from any damages. The court refused to decide whatlegal standard should apply to off-campus speech.
“We do not reach the question whether school officialsviolated Doninger’s First Amendment rights by preventing her from running forSenior Class Secretary. We see no need to decide this question,” the decisionread, adding that any First Amendment protection had not been “clearlyestablished” at the time of the punishment.
Perhaps most significantly for future cases, the courtadded: “it was reasonably foreseeable that Doninger’s post would reach schoolproperty and have disruptive consequences there.”
Layshock and J.S.
Doninger’s case tested onlinestudent expression within the confines of her own blog, but two Pennsylvaniacases extended the online expression challenge to include social networkingsites. Justin Layshock, then 17, created a fake MySpace profile ridiculing hisschool principal, Eric Trosch. Similarly, “J.S.,” then a 14-year-old middleschool student, also created a mock profile for her principal, James McGonigle.Both were punished, and both sued their schools.
Layshock’s profile, created on his home computer in December2005, ridiculed Trosch and included statements about sexual habits and druguse. When Trosch’s daughter, then a student at the high school, brought theprofile to his attention, he conducted an investigation of the profile andthree similar profiles that had been created by other students.
When Trosch found out that Layshock had created one of theprofiles, he called Layshock and his parents into a meeting. Layshockimmediately went to Trosch and apologized, which Trosch later testified hefound “respectful and sincere.” He went home, where he faced his disappointedparents and accepted his punishment of grounding and no computer use.
Less than a month later, Layshock discovered that the schooldistrict intended to punish him for a string of rule violations includingdisruption of school, harassment, “gross misbehavior,” and unauthorized use ofa photo from the school website.
He was sent to alternative school and told he would not bepermitted to attend his high school graduation; the placement was laterrescinded and replaced with a long suspension. Previously, Layshock had been anhonors student, French tutor and a participant in the interscholastic AcademicGames, according to court records.
Layshock’s parents filed suit for him against HermitageSchool District and its administrators, claiming that the district violatedLayshock’s First Amendment rights and that the district violated the parents’Fourteenth Amendment rights by preventing them from disciplining their son asthey saw fit.
The case of “J.S.” – who is referred to in court filingsonly by her initials because of her age – followed a similar pattern. In hermock profile, the “McGonigle” character bragged about being a pedophile andother deviant behavior. After the profile was brought to McGonigle’s attention,he called a meeting with J.S., her parents and the school guidance counselor,where she admitted to creating the profile with a friend.
McGonigle determined the girls had violated a schooldistrict policy prohibiting “false accusations against school staff members,”as well as the district’s computer use policy. J.S. was suspended for 10 days.
Her parents filed a suit, claiming that the school hadunlawfully punished the middle-schooler based on non-disruptive, out-of-schoolconduct. They also claimed the school had infringed upon their right ofparental autonomy, protected by the Fourteenth Amendment.
Both cases were eventually appealed to the 3rd U.S. CircuitCourt of Appeals. Because of the similarities between the cases, the ThirdCircuit court was widely expected to rule the same way on both, though thecases were assigned to differing three-judge panels.
Instead, in February 2010, the two panels issued conflictingopinions. Due to the conflicting messages, the Third Circuit agreed to vacatethose rulings and rehear the cases en banc, with all 14judges taking part.
In June 2011, the full court sided with the students.
“[I]t would be an unseemly and dangerous precedent to allowthe state, in the guise of school authorities, to reach into a child’s home andcontrol his/her actions there to the same extent that it can control that childwhen he/she participates in school-sponsored activities,” wrote Chief JudgeTheodore McKee in the unanimous Layshock decision, asentiment echoed by the 8-6 majority in J.S.
However, the court also skirted the issue of whether or not Tinkershould be the reigning standard for online, off-campus speech. Instead, themajority said that even if that standard applied, J.S. andLayshock’s speech was not disruptive to the school environment and could not bepunished.
Five of the judges went further, arguing that Tinkershould not apply to off-campus speech.
The court also appeared to be in broad agreement that theSupreme Court’s 1986 Bethel School District v. Fraserdecision, which allows schools to punish “lewd” or “plainly offensive” speechon campus, should not apply to online speech.
A new breed of case is trickling inas well: suits by students punished for cyberbullying. The relevance of thesecases may not be apparent at first glance, but student journalists could soonfind themselves profoundly influenced by them.
The 4th U.S. Circuit Court of Appeals recently decided onesuch case, Kowalski v. Berkeley County Schools. KaraKowalski, then a high school student, created a MySpace group called S.A.S.H.,which she claims stood for “Students Against Sluts Herpes.” However, the pagequickly devolved into a group attacking one student, “Shay N.,” including anallegation that the group’s acronym stood for “Students Against Shay’s Herpes.”
Shay N.’s father brought the page to the school principalthe next day and demanded that the school take action. The school determinedthat the MySpace page was a “hate website,” even though Kowalski had takensteps to remove the page the night before and maintained that it had beencreated as a forum to discuss STDs, not to attack anyone in particular.Kowalski was suspended for 10 days (a punishment later reduced to five), butshe was barred from participating in extracurricular activities – including thecheerleading squad – for the rest of the year.
When the case went to court, the Fourth Circuit sided withthe school, holding that Tinker applies tooff-campus speech and that Kowalski’s page was disruptive enough for the schoolto punish her for it.
However, the court used language broader than any of theother circuits, indicating that Fraser and other,more-restrictive precedents could also extend off campus in future cases.
“To be sure, a court could determine that speech originatingoutside of the schoolhouse gate but directed at persons in school and receivedby and acted on by them was in fact in-school speech,” and punishable under theSupreme Court’s other student speech cases, wrote Judge Paul Niemeyer in thepanel’s unanimous opinion.
Shortly after the Fourth Circuit decision came down in July,the 8th U.S. Court of Appeals issued a similarly restrictive ruling citing Tinker.
In D.J.M. v. Hannibal Public SchoolDistrict, a high school student made statements to a classmate viainstant message implying that he was thinking about shooting students at theirschool and then committing suicide. The messages were eventually forwarded toschool officials, who determined the student’s actions constituted a threat andcalled the police. Following the arrest and psychiatric evaluation of “D.J.M.,”the school suspended him for ten days, and then extended the suspension to theremainder of the year. D.J.M sued, arguing that his off-campus speech did notdisrupt school activities until the school called the police and his commentsbecame public.
The Eighth Circuit found that the statements were not only“true threats,” and thus not entitled to any First Amendment protection, butthat the school would have been justified even if they did not meet thatstandard. Tinker applies to off-campus speech, the courtheld, and the threatening comments posed enough risk of disruption to bepunishable at school.
These cases highlight the law’s struggle to stay caught upwith evolving forms of media and the blurring lines between on- and off-campus.
“Generally, the law tries to apply bricks-and-mortarstandards to the Internet,” explained David Hudson, a legal scholar and authorat the First Amendment Center. “Sometimes it works, and arguably sometimesthere are differences that may call for a modulation.”
The digital domain reaches farther and is more public thanany other forum for communication in history, creating thorny questions aboutwho is intended to see what, and when online events affect on-campus life.
“Before this new technology, I’m sure at some point in mylife I got on the telephone and said some very unflattering things about ateacher. Now kids are posting it online, and some of them are getting introuble,” Hudson said. “What’s at stake is the level of free speech rights theyhave on the Internet and how far school jurisdiction extends, and whethercritical speech of school officials – if those students have the right toengage in that.”
Despite its potentially broader reach, Internet speech is nodifferent than any other off-campus speech, said Vic Walczak, an attorney withthe ACLU of Pennsylvania involved in the Layshock and J.S.cases.
“Legally there is no difference between on- and off-linespeech,” he said. “I mean, practically, online speech can reach further thanyour more conventional modes of expression, but legally the protections are thesame.”
However, it is proving more difficult for courts to discernwhere online speech “occurs” than it is with speech on paper. Hudson explainedthat although the number of cases is growing, courts have not yet developed adefinitive standard for online student speech.
Most courts have used the Tinker standard todetermine whether the online speech could cause a disruption at school, Hudsonsaid. However, some courts have applied other precedents, such as the Fraser“lewdness” case – a potentially dangerous development, Hudson said.
“If the Fraser standard is appliedmore broadly, as some other courts have applied it, then anytime you get onlineand curse then arguably school officials have the ability to regulate thatunder the Fraser standard,” Hudson said.
Although the current state of online student expression isunclear, Walczak said he thinks emerging cases are helping to form a clear linebetween what kind of speech is punishable by schools.
“I think what the two Third Circuit cases stand for is thatschool officials have to have a very strong reason to justify any type ofcensorship over off-campus speech, and that simply being offended is notsufficient reason,” he said.
The stakes are high as the nation’s highest court is beingasked to weigh in. The Supreme Court will decide in the coming months whetherto hear one of these cases. Lawyers for both Avery Doninger and the BlueMountain School District have asked the Court to take their respective cases.
Jon Schoenhorn, who represents Doninger, said that hepetitioned for Supreme Court review because the Second Circuit’s rulingconflicts with the Third Circuit’s rulings in the Layshock andJ.S.cases, setting up a split in the circuits. He believes the Supreme Court ismore likely to take up the case because of potential confusion within theappeals courts.
“I just think the buzz has reached the level where I thinkit would be certainly possible for the Supreme Court to take the case, and thenwe’d have the ultimate guidance,” said Hudson. “In simple language, these areextremely important cases, arguably the most important student online speechcases that have been decided to date.”
By Emily T. Gerston, SPLC staff writer