Tag Archives: blog

Eighth Circuit rules against students’ free speech claim over offensive website

S.J.W. v. Lee’s Summit R-7 School District, No. 12-1727 (8th Cir. October 17, 2012)

Plaintiffs (twin brothers) created a blog that contained offensive, racist and sexually explicit content targeting their high school classmates by name. The school district suspended the brothers for 180 days. Plaintiffs got a preliminary injunction against the suspension, and the school district sought review with the Eighth Circuit. On appeal, the court reversed, and ordered that the suspension should not have been halted by the injunction.

students talking

The court held that under the Tinker analysis (Tinker is the leading case from the Supreme Court dealing with student free speech), the blog posts could reasonably have been expected to reach the school or impact the environment. Paired with the considerable disturbance and disruption at school because of the content, the court found that the lower court improperly held that the plaintiffs would have a successful First Amendment argument.

Moreover, the appellate court held that the plaintiffs had not shown irreparable harm from their suspension. They were able to enroll at another local accredited school, and the harm to their future music careers from not being able to try out for band was merely speculative.

Photo courtesy Flickr user davitydave under this Creative Commons license.

Blogging ex-wife gets alimony cut

Cardone v. Cardone, 2011 WL 1566992 (Conn.Super. April 4, 2011)

Here’s yet another case where social-media-as-evidence affected the legal relations between ex-spouses. (We’ve discussed other cases along these lines.) The court relied heavily on a blog that the ex-wife and her boyfriend maintained to order that the ex-husband’s alimony obligation be substantially reduced.

The pair divorced in 2001. Ex-husband was to pay ex-wife $250 per week in alimony unless and until either of them died or remarried. The divorce decree also made reference to a Connecticut statute which provides that a court can modify an order of alimony if the one receiving the alimony cohabits with an unrelated member of the opposite sex.

Ex-wife had a condo but rented it out to relatives. She spent months on her boyfriend’s sailboat in the Caribbean. As the court observed “their adventures [were] detailed in a lengthy and entertaining blog the couple posted on the internet, which was made an exhibit at the hearing.” (Anyone have a link? Let me know in the comments.)

Based on the blog evidence and the fact she’d rented out her condo, the court found that she was cohabiting with the guy, and that her financial situation had changed enough for the alimony to be reduced to $75 per week.

Updated 5/3/2011: To correct numbers in original post — award was reduced from $250 per week to $75 per week (not per month).

Blog post violated nonsolicitation clause in Amway agreement

Amway Global v. Woodward, 2010 WL 3927661 (E.D.Mich. September 30, 2010)

Amway Global went after some of its former distributors in arbitration for, among other things, violating the “Rules of Conduct” which serve as an agreement as to how the distributors (formally known as Independent Business Owners or “IBOs”) operate. Amway claimed that the IBOs violated the Rules of Conduct by soliciting others to leave Amway and join competing enterprises.

The arbitrator found in Amway’s favor, and Amway filed a motion with the court to confirm the award. The court granted the motion.

One of the factual questions was whether one of the IBOs violated the rules against solicitation by blogging about his decision to leave Amway and join another company. One of his posts said “[i]f you knew what I knew, you would do what I do.”

The IBOs argued that this statement did not constitute actionable solicitation because the communication was passive and untargeted, and because there was no evidence that anyone responded to the solicitation by leaving Amway.

The court rejected these arguments. As to the “passive and untargeted” argument, the court observed that:

[C]ommon sense dictates that it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation. The [statement] is readily characterized as an invitation for the reader to follow his lead and join [Amway's competitor], and this is true despite the diffuse and uncertain readership of the site.

As to the argument based on the fact that no one responded, the court found that the express language of the nonsolicitation clause which prohibited “encourag[ing], solicit[ing], or otherwise attempt[ing] to recruit or persuade any other IBO to compete with” Amway did not turn on the success of those prohibited efforts.

Discipline of student for personal blog post did not violate First Amendment

Post on LiveJournal blog in which student referred to administrators by a derogatory name and was intended to incite anger in administration was justification for disqualifying student from participating in upcoming election of class officers.

Doninger v. Niehoff, — F.3d —-, 2008 WL 2220680 (2nd Cir. May 29, 2008)

Toward the end of Avery Doninger’s junior year in high school in 2007, she became quite involved in planning the upcoming “Jamfest,” a battle of the bands held at her high school. After learning that school administrators were likely to postpone Jamfest, Avery collaborated with some of her classmates to raise attention concerning the postponement and to pressure the school administrators to rethink the schedule.

One of Avery’s pressure tactics was to post an entry to her LiveJournal blog in which she referred to the school administrators as “douchebags” and encouraged others to contact the school principal to “piss her off” more. Eventually, administrators discovered the blog post and decided that Avery should not be permitted to run for Senior Class Secretary.

Lewis Mills High School, where Avery Doninger attended

So her mother as guardian and next friend sued the school district alleging violation of Avery’s first amendment rights. She sought injunctive relief, asking the court to either redo the election or give Avery all the rights and privileges of the student that was duly elected as class secretary. The district court denied the preliminary injunction. Avery’s mother sought review with the U.S. Court of Appeals for the Second Circuit. On appeal, the court affirmed the denial of the preliminary injunction.

The Second Circuit held that the district court did not abuse its discretion in denying the motion for preliminary injunction, though the appellate court’s analysis was a bit different. Applying the standard in the seminal Tinker case (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)), the court held that keeping Avery out of the election was permissible. The blog post created a reasonably foreseeable risk of substantial disruption within the school.

The case is unique in that it did not deal with content created at school or under the auspices of the classroom, but rather was created on Avery’s personal time, outside of school, on her own computer. But the “off-campus character” of the posting did “not necessarily insulate [Avery] from school discipline.”

The court found it was reasonably foreseeable that Avery’s post would reach school property because the content directly pertained to school events, its intent was to get students to read and respond, and Avery knew school community members were likely to read the post. Moreover, on the point of substantial disruption, the post contained offensive language, was misleading, and did not comport with the standard of conduct expected of a school government participant.

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A guide to registering the copyright in your blog

The required procedures for registering claims of copyright in the United States Copyright Office don’t match up well with the practicalities of modern web publishing. It would be almost a full time job to file new copyright applications each time a blog is updated, let alone prohibitively expensive. And what on earth forms are you supposed to fill out? How do you send in a copy of your blog to claim copyright registration in it?

Sarah Bird, Esquire over at SEOmoz.org has written an excellent little article titled Copyright: Sample Forms and Strategies for Registering your Online Content which helps cut through the confusion and anachronisms you’ll face when sending materials to the Copyright Office. She’s a terrific writer (I wish I could write so clearly), and does a great job outlining a subject that is needlessly confounding.