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Dear Readers,
Like clock work at just about this time every year, high school seniors in the thrall of “senioritis” start to get restless and rambunctious. An increasingly popular outlet for youthful creative energy is the blog, which is all the rage and tech friendly enough that even an 11 year old can maintain it! These blogs are typically a combination of a student's own posts and whatever anyone else posts to the blog, which the student essentially maintains. When it comes to websites and blogs the law is confusing and not altogether resolved. But here are a few basic rules that hopefully will help to know what to do and when you should get more help.
First and foremost, nothing has changed regarding school-maintained websites and blogs. If the school maintains and operates a site that students can post to, the school has complete control over its content. Even if the content posted by a student appears to be political or religious free speech, it can be removed, provided that the school website has not become a “public forum”. Therefore, you should ensure that you have a policy that clearly delineates the purpose of the school blog or website. And be sure to define the range of objectionable categories (those being whatever it is the school administration does not want to appear) regarding comments to the site. Of course, a student who posts obscene or profane language to a school website or blog is just like a student who writes those things on the blackboard or on a computer in his library. In other words, it is not protected free speech. See Kuhlmeier v. Hazelwood School District, 795 F2d 1368 (“A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school”).
So far, so good. Now, when one is dealing with a student operating on his own time and with his non-school district owned or maintained websites or blogs, the rules are different. Very, very different! Your student code of conduct does not apply unless the student's actions are also criminal misconduct. For instance, student comments that are defamatory and untrue are still libelous. If you are unsure if the actions qualify, don't try and guess; get help. What is or is not child pornography, a terrorist threat, or other equally serious misconduct involving words or pictures is as difficult to determine as anything in the law. However, most other comments by a student acting on his own time off-campus and using private websites or blogs are not going to entitle the school district to punish the student, even if the remarks are objectionable or obnoxious. See Frederick v. Morse , 439 F3d 1114 (“Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected”).
And now for the toughest question of all: what about the high school valedictorian or president of the National Honor Society who writes humiliating or scandalous comments about the high school principal or puts the assistant principal's head on the body of a donkey or... well, you get the point. What can you do about students in positions of leadership who do these things, when done on their own time and with their own websites and blogs?
Well, before we answer this question you need to start by asking, “What do you really want to do?” How far into this area of deep and muddy water do you really want to wade? Before you decide, you need to first revisit each and every piece of paper, handbook, or student activity group enrollment form. You must see what has been published to students for the past few years regarding any special rules that apply to students holding a position of honor (or participating in extra curricular activities and/or UIL activities), something that is essentially a privilege and not a constitutional right. If you are not willing to do such a review and insure every faculty member sponsoring an activity is willing to do so as well, you are far better off just leaving it alone. Unfortunately, there are no published cases yet authorizing a public school to punish a student for publishing objectionable comments when the website or blog is privately maintained by the student. But you can rest assured that right now there are political and free speech groups and attorneys who think this whole area is so much more exciting that what they normally do, and they are going to offer their services for free to defend students who use their websites and blogs to disparage others, claiming that they are protecting free speech!
In your every BLOG adventure we wish you the very best.
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Laura Fowler and THE FOWLER LAW FIRM P.C . are so grateful to so many of you who have helped to make our firm a success. The Fowler Law Firm P.C. is a full service law firm whose attorneys have many years of experience in the handling of education institution issues, both public and private, non-profit associations, real estate, family law, probate and estate, business formation and taxation and all aspects of copyright, trademarks and patents. We never charge a client a fee or incur any expense until the client understands and agrees. In addition, we often counsel with your clients and friends and give them the information they need at no charge when we cannot truly be of service. For more information or to refer a matter to us please contact us at (512) 441-1411 or visit our website at www.thefowlerlawfirm.com .
This information is
provided by Laura S. Fowler, Attorney at Law with
The Fowler Law Firm PC. It is not intended as a
substitute for careful review by legal counsel of
your choosing. We would be most honored to assist
you in your every real legal need.
Contact Laura
Fowler at lfowler@thefowlerlawfirm.com
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call (512) 441-1411.
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