Courts grapple with issues arising from Internet, blogs: Educators explore policies for off-campus activity

March 12, 2007

The World Wide Web and blogging explosion have created new hurdles for attorneys, especially those consulting on issues that arise from school districts trying to balance off-campus activities and school safety.

As officials recognize that off-campus activity can spill into school hallways and classrooms, many are looking to policies that can prevent those actions outside school from impacting student safety or the overall educational process.

"Internet blogging is one of the more publicized activities that pose both harm and benefit, and educators need to be cognizant of Supreme Court law that governs how schools restrict off-campus activities," said Barnes & Thornburg's Todd Vare, a partner in the intellectual property group.

Increasing crackdowns on what educators deem inappropriate online behavior is pitting schools against students and free speech advocates, who say administrators are pursuing school rules too far beyond the classroom and overstepping the law.

For example, the Clark-Pleasant Community School Corporation late last year implemented a policy that made students and teachers legally responsible for anything posted online, including material deemed defamatory, obscene, proprietary, or libelous. Beech Grove has a similar policy, and Carmel High School has used its policy against harassment and bullying to punish students for online comments.

Law professor Henry Karlson at Indiana University School of Law - Indianapolis said students have First Amendment rights and that parents, not schools, should monitor teenagers' out-of-school behavior.

Case law is sketchy on this front, although court rulings are starting to delve into that realm and touch on the global effect of the Internet and how the law applies to those contemporary, technological situations.

"We're seeing very few of these types of cases in court right now, but I expect we'll see an avalanche over the next couple years as the law and lawyers catch up with our technology," said professor Fred Cate, who specializes in Internet law at Indiana University School of Law - Bloomington. "Where we are now, the legal issues can be categorized into a number of groups. Libel and defamation are big ones, but so is invasion of privacy and copyright."

Cate said he often cautions students - many who have MySpace or Facebook pages - that they're not just posting for the public, but they're giving away their legal rights to posted items, such as poems, writings, or photos.

The technology is also raising employment and labor law issues, Cate said, because 12 percent of employers report using these kinds of sites to screen potential employees and that two-thirds say they haven't hired because of what's posted online.

"A particular challenge as more schools and institutions go online is how closely trademarks and copyrighted items will be policed," Cate said. "As more want to go online, these IP aspects become more critical and we want to protect that IP."

Cate added, "There's no separate law right now. The law that protects our IP offline is the same law that protects it online. It often comes down to factual distinctions."

As courts hear more of these cases, Cate sees more evidentiary issues arising for attorneys who need to show chain of custody for something online, or whether an item has been changed or doctored online.

Some court rulings are starting to hit directly on technological issues, especially those dealing with MySpace and how it can be regulated.

On Feb. 20, U.S. District Judge Sam Sparks in Texas dismissed a lawsuit against MySpace, which was filed by the family of a 13-year-old girl who said a 19-year-old man she met online sexually assaulted her. The $30 million suit accused the site of having no measures to protect the children who use it.

But Judge Sparks said MySpace is protected under the federal Communications Decency Act of 1996 and cannot be expected to verify the age of every user. The act generally grants immunity to interactive computer services such as MySpace so that they are not liable for content posted by users. Without immunity, companies such as MySpace "would be crippled by lawsuits arising out of thirdparty communications," Judge Sparks wrote.

While other suits are pending against MySpace nationwide, attorneys and law professors say this federal ruling could be persuasive to the remaining ones but would not be binding on state courts.

In a written statement released to the media, an attorney for the girl and family said they would file an appeal. "This is allowing sites like MySpace to avoid the responsibility to make the Internet safe for children," said attorney Jason Itkin. "MySpace knows its website is a playground for sexual predators, (and) because of that, MySpace should be doing some very basic safety precautions."

In Indianapolis, Vare said that's already happening. Last fall, MySpace released a guide to schools encouraging educators to contact them about potential problems. A hotline and e-mail specifically for school officials was also created, Vare said.

A question he encounters from school districts is often how the law regulates educators to extend existing policies to offcampus Internet blogging, Vare said.

A U.S. Supreme Court case being argued this month could ultimately lead to a decision that impacts questions about online activity, even though the straightforward question in the case Morse and the Juneau School Board et al. v. Frederick is about free speech and off-campus activity of students.

In the case dubbed the "Bong Hits for Jesus" case, an 18-year-old student (Frederick) was suspended in 2002 after unfurling a 14-foot long banner referencing marijuana use just outside school grounds, just as the Olympic torch relay moved through the area. The principal ordered him to take down the banner, but he refused and was suspended for 10 days for violating a school policy against promoting illegal drug use. He sued, saying his First Amendment rights were violated.

"This may or may not resolve questions of online activities, relating to off-campus activity," Vare said. "Schools are in a quandary right now."
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