Online Speech Pits Students vs. Teachers

March 13, 2008— -- When Avery Doninger, 17, complained on her blog about her school's apparent decision to cancel a student-organized concert, she didn't set out to start a free-speech debate.

The Connecticut high school senior called her school administrators "d*****bags" on her online journal and told other students to e-mail the school superintendent to complain. After the school principal learned of Doninger's crude complaints, she was barred from serving on the student council and from speaking at her upcoming graduation.

Doninger's blog post is now the subject of a federal First Amendment lawsuit that questions schools' ability to monitor and punish what students say online. "It's really important that students' speech rights are clarified and that schools can't reach into your home and discipline your actions outside of school," Doninger recently told ABC News.

Student pranks and gripes are nothing new. But, with the digital world accessible to anyone with a computer, what teenagers say off campus about their schools and teachers has taken on new resonance. Speech that once might have been punished without a second thought is now becoming the subject of First Amendment battles when moved online.

A 2007 report from the Pew Institute said that 55 percent of teens had online profiles on social networking sites. More than a third of schools surveyed in a 2006 National School Boards Association survey said student postings on social networking sites were disruptive to the school's learning environment. Of those, 25 percent said students were creating fake sites for teachers or administrators; 68 percent said students posted inappropriate content.

"The Internet isn't a legal-free zone," said David Hudson Jr., a scholar at the First Amendment Center in Tennessee. "You can defame someone on the Internet just like in a newspaper."

Though no reliable statistics are available, ABC News found several recent cases in which schools punished students for what they published online. In at least one case, school officials initially contemplated filing criminal charges against the students.

"Clearly, kids today have a lot more ways to express themselves than they did even ten years ago," said Kenneth Myers, who represented an Ohio student who sued his school after he was expelled for creating a fake MySpace profile for his principal. "If kids are putting stuff up about themselves, they're going to put it up about teachers and principals."

The 13-year-old student, identified in court papers only as R.O., outraged school officials when he created a fake MySpace page that included the principal's photo – and said that he enjoyed having sex with his students and an assistant principal. "It was a vulgar, terrible disgusting Web page," Myers said. "But these were also 13-year-old kids."

The boy's parents settled the lawsuit after the Parma City School District agreed to reverse the expulsion, erase it from their son's records and allow him to make up his missed schoolwork. The school district declined to comment.

In Jenks, Okla., four students were suspended for allegedly creating fake profiles of three teachers and one administrator. Jenks Middle School administrators had initially discussed filing criminal charges against the students but are no longer involved in the case, spokeswoman Tara Thompson wrote in an e-mail to ABC News.

"At this point, the school is no longer involved with this situation," she wrote. "The students have served their suspensions, and any legal action will come from the individual employees."

Students have First Amendment rights but that doesn't necessarily give them the right to say whatever they want online. Courts have allowed schools to restrict student speech under certain circumstances, such as when the speech causes substantial disruption to the school day. The Supreme Court recently dismissed a student's civil rights lawsuit filed after he was suspended for displaying a "Bong Hits 4 Jesus" banner at a school-sanctioned event.

But when the speech takes place on the Internet, it makes the case more complicated, said Hudson, the First Amendment scholar. Hudson emphasized that in order for school districts to punish students for their online activity, the student speech has to be under the school's jurisdiction.

Deciding what speech is under school control is "hazy," because students often create the Web pages at home and not on school grounds. Schools can still argue that false social networking pages cause substantial disruption to the school day or invade the rights of others.

The question of where the speech took place was central to Doninger's case, which is pending before the Second Circuit Court of Appeals. After they discovered her blog post, school officials wouldn't allow Doninger to serve as senior class secretary and speak at graduation. A trial court judge denied Doninger's request for a court order forcing the school to allow her to serve on the school council.

Regional School District 10 Superintendent Alan Beitman said he did not know whether Doninger would be allowed to speak at commencement.

Doninger said that though she does not regret her blog post, she wishes that she had chosen her words more carefully. "I don't think I should have said that word," she said. "It was political speech and it's good that I was lobbying for community support, but I could have used more sophisticated language."

Hudson said that in many cases schools should leave the punishment to parents. "I think expulsion is a bit overkill," he said. "I think that perhaps some instruction on responsible Internet use may be appropriate."