First Amendment Issue - My 13 year old son's web site

[msretro]

What is the name of your state?What is the name of your state? Mississippi

My 13 year old son has a website with public message boards. One of his classmates made a derogatory post about another classmate on the forum, without my son realizing it. The post was made on the student's own time, and not from a school computer. However, someone at school saw the post on my son's web site and notified the librarian about it. My son removed the post as soon as he found it on his forum; however, the librarian called my son on the carpet, and told him that she could not discipline him for the post because the kid who wrote it didn't write it during school time, but had that other student made the post during school hours, MY son would be disciplined for it!! She stated that he is responsible for anything defamatory that is posted on his web site because the site belongs to him. Also, my son has been banned from visiting his own web site during school hours (which I understand) but none of the other students have been banned from visiting my son's site. It is as if he is being punished simply for owning the web site. Isn't he considered an innocent desseminator of information, here? Why does the school have their nose in this if none of it took place during school hours? How can they be legally involved? Can my son be held legally responsible for the post of another person, if he removed it as soon as he was made aware of it? The librarian made my son remove his message boards off of his web site, which he did, to avoid any further confrontation from her.

Also, my son was told that this is going to be referred to the principal on Monday. I would like to be armed with some information before I go up to the school.

I am so furious! I can understand how the derogatory remark about another child would be hurtful, but my son did not post the remark, nor did he condone it, and he removed it immediately after he was made aware of it.

Any advice would be greatly appreciated.

 

[BelizeBreeze]

First of all I suggest you read the following thread on this forum for background on the legal definition of 'Publisher' and 'Distributor'.
https://forum.freeadvice.com/showthread.php?t=206843

Once you're completed that thread, I would further suggest you read this one:
https://forum.freeadvice.com/showthread.php?t=208739

Then, once you've absorbed the tenor of those threads, absorb the following:

In 1969, the U.S. Supreme Court extended substantial First Amendment protection to public school students in Tinker v. Des Moines Independent Community School District. The case began in December 1965 when a group of adults and students in Des Moines decided to protest United States involvement in Vietnam. Several students, including John Tinker, Mary Beth Tinker and Christopher Eckhardt, wore black armbands to school

On appeal, the Supreme Court reversed on a seven-two vote. Justice Abe Fortas wrote the oft-cited language that "t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Since Tinker, the U.S. Supreme Court has chipped away at the decision in several areas of First Amendment rights of students.

The Supreme Court applied a relaxed standard for student constitutional rights in Bethel School District No. 403 v. Fraser. In Fraser, the High Court ruled that public school officials did not violate the First Amendment rights of a student who gave a speech before the school assembly that was laced with sexual references.

The chipping away of Tinker came full circle in the High Court's 1988 decision in Hazelwood School District v. Kuhlmeier. In Kuhlmeier, an assistant school principal pulled two student articles from the school newspaper, "The Spectrum." One article dealt with teen pregnancy and the other addressed teens' reactions to divorce.

The High Court distinguished between the school-sponsored speech in Kuhlmeier from the student-initiated speech in Tinker. The High Court determined that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are related to legitimate pedagogical concerns."

The central them in these decisions is that in Tinker, the actions that were protected were student-initiated and not school-sponsored or under school control whereby, those in Kuhlmeier were conducted as a result of school-sponored activity in which the school posessed a verifiable interest of control.


The courts have also discussed off-campus activities relating to First Amendment protections and the rights of the school administraton to control those actions through administrative punishments.

In Smith v. Klein, a federal district court in Maine determined that school officials did not have jurisdiction to punish a student who gave an inappropriate gesture to a teacher off campus.

"The conduct in question occurred in a restaurant parking lot, far removed from any school premises or facilities at a time when teacher Clark was not associated in any way with his duties as a teacher," District Judge Gene Carter wrote.50 Judge Carter emphasized that "the student was not engaged in any school activity or associated in any school activity or associated in any way with school premises or his role as a student." The judge concluded that any connection between the student's disrespectful act to the orderly operation of the school was "too attenuated."

In Thomas v. Board of Education, Granville Central School District, the Court of Appeals for the Second Circuit ruled that school officials did not have the authority to punish students who published an underground paper called "Hard Times." The publication contained numerous articles on sexual subjects, such as masturbation and prostitution. It also parodied school officials.

However, the publication was created largely by students off campus and was sold off campus. The appeals court characterized the use of school facilities to create the paper, such as a typewriter, as "scant and insignificant."

The court of appeals noted that school officials must be given latitude to carry out their educational responsibilities. However, the court wrote, "our willingness to defer to the schoolmaster's expertise in administering school discipline, rests, in large measure, upon the supposition that the arm of authority does not reach beyond the schoolhouse gate."

Now we come to the issue of the Internet and First Amendment protections for students outside the scope of school authority.

Sean O'Brien, while a sixteen-year-old junior at Westlake High School, created a website in March 1998 that lampooned his band teacher Raymond Walczuk. His web page "raymondsucks.org" contained several unflattering comments about Walczuk, including:

"He is an overweight middle-aged man who doesn't like to get haircuts . . . He likes to involve himself in everything you do, demands that band be your number one priority, and favors people who kiss his ass . . . He often thinks that problems are caused by certain students and/or groups of students and no one else."

U.S. District Judge John M. Manos granted O'Brien a temporary restraining order, requiring school officials to "forthwith restore him as a student in good standing." According to one of Sean O'Brien's attorney, Kenneth Myers, "it took Judge Manos all of about 30 seconds to grant the temporary restraining order."

School officials settled with O'Brien by agreeing to pay him $30,000, expunging the suspension from his record and writing a letter of apology.124 An April 8, 1998, letter to Dr. Vincent O'Brien by Dr. Beverly Reep, Superintendent of Westlake City School, stated, "[f]inally, I wish to offer my sincere apology for the misunderstanding which resulted in the imposition of this disciplinary action. Please know that it is neither the Board's policy nor the administration's practice to abridge students' legitimate exercise of their constitutional rights." Reep acknowledged that "the Board recognized that this right [to freedom of speech] extends to students who, on their own time and with their own resources, engage in speech on the Internet."

Other cases that have been decided supporting the rights of students to First Amendment protection during activities outside the control of the school are:
Beussink v. Woodland R-IV School District
Emmett v. Kent School District No. 415
Beidler v. North Thurston School District No. 3

Also, where First Amendment student speech is not protected can be found in the following case:
J.S. v. Bethlehem Area School District

In May 1998, J.S., an eighth-grade student at Nitschmann Middle School in Bethelehem, Pa., created a web page on his home computer that made numerous derogatory comments about his algebra teacher, the school principal and others. The page contained such vulgar comments as: "She's a bitch;" "Why Should She Die?"; and "Take a look at the diagram and the reasons I gave, then give me $20.00 to help pay for the hitman." The school principal and teacher considered some of the material on the website to be threats and called law enforcement officials, including the F.B.I. The student voluntarily removed the website one week after the principal learned of the website.

The student appealed the school board's expulsion determination to a court of common pleas court, which affirmed. The student then appealed to the Commonwealth Court of Pennsylvania. A three-judge panel ruled two to one in favor of the school board.

The majority applied a Tinker analysis, citing cases establishing that schools can punish students for off-campus expressive conduct. The majority agreed with the judge in the Beussink case that Tinker is the correct analysis to apply. "Thus, from the cases noted above, it is evident that the courts have allowed school officials to discipline students for conduct occurring off of school premises where it is established that the conduct materially and substantially interferes with the educational process," the majority wrote.184

The majority then determined that the student's website "materially disrupted the learning environment." The majority noted that "students discussed the website while at school and at school-sponsored activities." The majority concluded: "To reiterate, courts recognize the authority of school officials to discipline students for off-campus activity where the activity materially and substantially interferes with the education process."

As to your son's particular situation, he has an idiot for a librarian who is trying to practice law without a license or a brain.