- The Washington Times - Wednesday, February 24, 2010

Before the rise of social-networking sites, students shared gripes about their teachers in the cafeteria or during gym class. But when Pembroke Pines, Fla., high school junior Katherine Evans took her complaints about her Advanced Placement English teacher to the Internet in 2007, her grumbling landed her in court.

On an issue that has divided the nation’s legal system, a U.S. District Court in Florida ruled earlier this month that the student’s “Ms. Sarah Phelps is the worst teacher I’ve ever met!” Facebook group “falls under the wide umbrella of protected speech,” and Miss Evans could go forward with a lawsuit challenging her suspension and removal from AP classes as a result of the incident.

“It was the opinion of a student about a teacher, that was published off-campus, did not cause any disruption on-campus, and was not lewd, vulgar, threatening or advocating illegal or dangerous behavior,” Florida Magistrate Barry Garber wrote.

Coarse language and bad manners are nothing new on Facebook and other social-networking sites, but courts and state legislatures are divided over how to curb personal attacks and cyberbullying while respecting students’ First Amendment rights to free speech.

Just weeks before the Florida decision, two courts in Pennsylvania took opposite stances on whether school officials could legitimately rein in offensive online postings by students.

“It all depends on the circumstances of the case,” said Mark Smith, director of Internet law services at the business and legal information company Pike and Fischer, noting that courts have focused on whether the student postings constitute a “substantial disruption” of normal school functions.

But Jonathan Zimmerman, a history instructor at New York University, warned his “fellow liberals” not to be so quick to oppose the school administration’s effort to control their charges’ Internet musings.

“If we really care about protecting free speech, we need to teach our kids some basic principles of civility. And sometimes that means we have to restrict their speech, even on the Web,” he wrote in a recent opinion piece for the Philadelphia Inquirer.

Miss Evans, now a student at the University of Florida, created the Facebook site and encouraged fellow students to share their “feelings of hatred” for the instructor.

Although the site was online for only a few days, Miss Evans was later suspended and removed from her AP courses. The school cited the reason for disciplinary action as “disruptive behavior” and “bullying/cyberbullying harassment.”

The issue has not reached the Supreme Court, and the lower courts are struggling to update a landmark 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, to the complexities of the information age. In that 7-2 decision, the high court ruled that three Iowa high school students should not have been suspended for wearing black armbands at school to protest the Vietnam War.

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Justice Abe Fortas wrote for the majority.

The case established the principle that schools could not curtail student rights to free speech unless the speech or activity was disruptive or violated the rights of others. The bar was even higher for activities off school grounds — until the Internet came along.

Earlier this month, a Pennsylvania court ruled against a local school board that tried to discipline a honors student who created a fake — and unflattering — MySpace page of his principal using his grandmother’s computer. The site suggested that the principal used drugs and had beer in his desk.

The 3rd U.S. Circuit Court of Appeals upheld the judge’s ruling in the case, but the Hermitage (Pa.) School Board last week said it would to continue to fight the ruling. The American Civil Liberties Union represented the students and their families in the Florida and Pennsylvania cases.

The decision was based in part on the fact that the MySpace page was not created on school grounds and was not shown to create a “substantial disruption” to school operations.

But a similar case in the same appeals court led to a completely different ruling. The appeals court in that case sided with administrators against a middle school student who also created a fake MySpace page, also off-campus, that hinted that a school principal was a sex addict.

The appeals court ruled that the school could discipline the student because it found that her posting had caused disruption in the school.

Although people defamed online can take legal action against their detractors, Pike and Fischer’s Mr. Smith said individual states already have moved to address the legal and free-speech issues surrounding the growing problem of cyberbullying.

According to the National Conference of State Legislatures, 19 states have laws defining and addressing online bullying and harassment.

Harassment through electronic media was made illegal in Missouri in 2008 after 13-year-old Megan Meier committed suicide as a result of vicious attacks on MySpace. Her tormentor, who appeared to be a boy, was later discovered to be an online fictional person created by a neighbor, 49-year-old Lori Drew, with the sole purpose of harassing Megan.

Mrs. Drew, the mother of a former friend of the girl, was indicted on four counts under the Computer Fraud and Abuse Act for cyberbullying, but was acquitted.

Some argue that no free-speech laws should be specific to the Internet, Mr. Smith said.

The Internet Freedom Act of 2009, sponsored by Sen. John McCain, Arizona Republican, would, among other things, bar the Federal Communications Commission from additional regulation of speech over the Internet.

But whether legal efforts can solve cyberbullying problems remains an open question.

“I doubt it would really stop people from doing what they want,” Mr. Smith said.

• Casey Curlin can be reached at ccurlin@washingtontimes.com.

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