By Elaine Gu
Gargoyle staff reporter
Posted Sunday, Jan. 14, 2007, The OG, news

AMONG TODAY'S HIGH SCHOOL students, blogging is nothing uncommon. In fact, a study conducted by the Pew Internet & American Life Project found that 19 percent of the population between the ages of 12 and 17 — about 4 million teens — have personal blogs, and 38 percent regularly read them.

Teens are using these to vent about their day, complain about parents, and gossip about fellow students and teachers. While most blogs are harmless, some can be a source of trouble.

The case of Gossip Girl

In October, a blog titled “Uni Gossip Girl ‘08” appeared on xanga.com. The site imitated the style of the “Gossip Girl” series written by Cecily von Ziegesar and brought back memories of the Gossip Girl craze at Uni High in the fall of 2005.

Initially, nobody made a big deal over it. It seemed like a joke that Gossip Girl had resurfaced. Plus, in the first post, the author simply commented on events going on around the school. Nobody in particular was mentioned.

“It wasn't mean because it was all just general knowledge,” commented sophomore Maddy Levin.

However, “Uni High Gossip Girl ‘08” became a hotbed for discussion when a second post followed with a “hot list” naming the three “hottest” guys and girls of each class. The site also joined the Uni High blog ring on Xanga and word of its existence spread like wildfire around the school.

Readers speculated as to who the creator of the site was and talked about how “bogus” the list was.

“Some were hot, some were not,” said sophomore Isaac Chambers. “At any rate, someone had too much time on their hands.”

According to the Uni Student Handbook (Section 7.11 on discrimination and harassment), making a “hot list” falls under sexual harassment.

“Even though [a hot list is] suppose to be a compliment, if it makes someone really uncomfortable, then it can constitutes as harassment,” said Uni librarian Frances Jacobson Harris, author of “I Found It on the Internet: Coming of Age Online,” one of the definitive books on how teens use the communication tools of the Web.

In November, another gossip site titled “You Love My Gossip” was created on Xanga. This site gossiped about students' and teachers' love affairs, appearance, etc., and used easily decipherable code names for each individual.

Reaction to this was even stronger, capped off by a Gargoyle opinion column, “No, I don't love your gossip, thank you.”

What can a school do?

While off-campus speech has traditionally been considered censorship-proof, school administrations have been increasingly concerned about possible violence in the wake of events such as Columbine. The question becomes: Can public school administrators punish students for material they post at home on a Web site unaffiliated with the school?

According to experts, no, they usually can't.

“This has come up in several recent cases, particularly where students comment on teachers,” said lawyer and media law expert Steven Helle, a journalism professor at the University of Illinois. “At least in the cases that I know about, the courts have said that the students' First Amendment rights prevail when the students are not engaged in school-associated activities.”

Helle's answer is supported by the Student Press Law Center, which states that “public school officials cannot legally censor or punish a student for posting a personal home page or Web log … even if the subject matter of the site is school-related or offensive.”

Some case law

The 2000 Beidler v. North Thurston County School District ruling by a Superior Court judge in Washington state serves as an example of how courts have treated censorship of off-campus speech.

Karl Beidler, then 17, was suspended in January 1999 by school administrators at Timberline High School for his personal Web site, which ridiculed a school official.

The judge ruled in favor of Beidler, claiming that evidence did “not show a material and substantial disruption of the work or discipline of the school ….” The school district ended up paying Beidler $62,000 ($10,000 for damages and $52,000 for lawyer fees).

However, that is not to say that public schools have no control of student speech. In 1969, the U.S. Supreme Court issued a ruling in the Tinker v. Des Moines Independent Community District case, in which an Iowa school district banned students from wearing black armbands in protest of the Vietnam War.

Despite the fact that the Supreme Court ruled in favor of the students and protected their First Amendment rights, the court said public school officials can regulate student speech that would “substantially disrupt school operations or interfere with the rights of others.”

“Although this standard has generally required the alleged interfering activities to occur in a school-related context, it doesn't take much imagination to argue that off-campus activities can interfere with school activities, too,” said Helle.

According to the SPLC, the 2000 J.S. v. Bethlehem Area School District ruling in Pennsylvania was one of the first in which a court sided with school officials who punished a student for speech outside of school.

The case involved an eighth-grade middle school student who created a personal Web site titled “Teacher Sux,” posting offensive material about teachers, including an image of a female teacher's face morphing into Adolf Hitler and asking visitors for a $20 contribution to hire a hit man for that particular teacher.

While the Pennsylvania Commonwealth Court acknowledged the First Amendment rights of the student, it ultimately sided with the school administration because it determined that student Justin Swidler disrupted the educational process through his threats.

“Regrettably, in this day and age where school violence is becoming more commonplace, school officials are justified in taking very seriously threats against faculty and other students,” wrote Judge Jess S. Jiuliante in the decision. “Given the contents of [Swidler's] Web site and the effect it had upon [the principal and teacher involved] and the school community, we conclude that the trial court properly determined that the School District did not violate [Swidler's] rights under the First Amendment.”

Drawing the line

“You can't be punished for writing on your blog ‘I don't like this teacher' or ‘So-and-so is bugging me,'” said Harris.

However, she added that if “it rises to the level of harassment so that the environment at school becomes hostile,” then schools do have the right to punish students for what they post on their personal Web pages.

Where should one draw the line separating what's considered appropriate and what's not? There's no definitive answer to that. But Edwin Darden, senior staff attorney for the National School Boards Association, said in an interview with the Online Journalism Review that there are three categories of problematic student Web sites.

The first category is anything that is “offensive, obnoxious, and insulting.” The second category includes sites that also have “some sort of veiled threat of violence, or of destruction of property,” and the third category contains blogs with an “outright blatant threat.”

The two Uni gossip sites can be most fittingly categorized under the “offensive, obnoxious, and insulting” category. With sites like these, Darden advises that schools “just need to develop a thick skin.”

The First Amendment prevents public schools (including Uni) from arbitrarily controlling student speech. But private schools, since they are not government entities, can exert more authority. For example, in October 2005 the school administration at Pope John XXIII Regional High School, a 900-student private school in New Jersey, ordered all students to delete their MySpace and Xanga or face suspension.

“Private schools can do a lot more,” said Harris. “We could never do that. We would never do that. But in a private school, you can have that kind of authority.”

Holding bloggers accountable

However, even though public school administrators don't always have the right to punish students for their speech outside of school, bloggers can still be held liable for what they post online, even if it's done from the safety of their own homes.

In other words, the people targeted by bloggers can use the court system themselves.

Bloggers can be sued for defamation, which, according to the Electronic Frontier Foundation, is “false and unprivileged statement of fact that is harmful to someone's reputation, and published ‘with fault,' meaning as a result of negligence or malice.”

Using code names does not protect the speaker or author in the least.

“All it takes is one person to testify that they thought the speech identified the teacher or student who is bringing the suit, and the libel (written defamation) or privacy suit can proceed,” said Helle.

In fact, under Illinois law, individuals suing do not even need to prove reputational damage if the libel:

— harms them in their trade or business;

— alleges an inability to perform or want of integrity in performing their job;

— alleges a crime;

— imputes socially loathsome diseases;

— or alleges unchastity.

According to Helle, “Cases have been brought involving fictional accounts when real-life persons thought the so-called fictional characters resembled the real-life person sufficiently that other real-life persons would connect them with the actions of the fictional character.”

So what's the bottom line for student bloggers looking for legal guidance? Be prepared for pushback if you like to test the limits of online expression.

“Blogging is becoming a hotbed of litigation, as bloggers learn that their speech is, indeed, subject to lawsuits,” Helle warned.

As he put it, “Internet users might assume that WWW stands for ‘Wild, Wild West' and anything goes, but the sheriff is coming to town.”

RELATED

— Electronic Frontier Foundation: Legal Guide for Bloggers

— Student Press Law Center: Resource Center