Tag Archives: First Amendment

No injunction against transferring student over violent YouTube video

O.Z. v. Board of Trustees of Long Beach Unified School Dist., 2008 WL 4396895 (C.D. Cal. Sept. 9, 2008)

While school was out of session for spring break, seventh grader O.Z. collaborated with a classmate to make a slide show video dramatizing the murder of the students’ English teacher. Though O.Z. says she did not intend to share the slide show to anyone outside her home, she posted the video to YouTube. A couple months later, while doing a vanity search on YouTube, the English teacher encountered the video. Naturally distressed by the work, the teacher notified school authorities. Administrators suspended O.Z. and transferred her to a different school for her eighth grade year.

O.Z. filed suit and sought a preliminary injunction requiring the school district to re-enroll her at her former school. She argued that the slide show was protected speech under the First Amendment, and that the school’s discipline for it was unconstitutional. The court denied the motion for preliminary injunction.

In evaluating the likelihood of O.Z.’s success on her First Amendment claim, the court applied the standard set forth in Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969). The Tinker test provides that discipline over student speech is appropriate if school officials reasonably conclude that the speech will “materially and substantially disrupt the work and discipline of the school.”

O.Z. argued that the slide show was merely a joke and not a true threat. But the court found that the school could reasonably forecast substantial disruption of school activities given the violent language and unusual photos comprising the video slide show. Further, the decision to transfer O.Z. served not only to discipline her, but to protect the safety of the teacher.

The fact that O.Z. created the slide show outside of school was of little import in the circumstances. Comparing the present situation with Wisniewski v. Board of Educ. of Weedsport Cent. School Dist., 494 F.3d 34 (2nd Cir. 2007) and other cases involving off-campus conduct, the court found that the slide show created a foreseeable risk of disruption within the school. Such a finding was no doubt influenced by the ability of social media platforms like YouTube to facilitate wide distribution of content.

Kentucky settles banned blogger’s First Amendment challenge to Internet filtering policy

Ed. note: This is a guest post by Greg Beck, an attorney at Public Citizen in Washington, DC. Greg works on a variety of issues at Public Citizen, mostly involving Internet free speech, anonymity, and intellectual property. He was lead counsel for Mark Nickolas in his challenge to Kentucky’s ban on blogs. [More info...]

Political blogger Mark Nickolas yesterday settled his lawsuit against Kentucky, in which he challenged the state’s policy of blocking blogs on state-owned computers. The settlement provides that Kentucky will no longer target websites for restriction just because they are blogs, and will instead treat them in the same way it treats other websites with similar content. In other words, classifying a website as a “blog” is no longer a good enough reason to ban a site on the state’s computers.

Nickolas is the owner and primary author of BluegrassReport.org, a blog focusing on Kentucky news and politics and specializing in criticism of former Governor Ernie Fletcher. In 2006, the New York Times quoted Nickolas and noted the blog in an article about Fletcher’s indictment on charges of political corruption. The next day, without warning, the state reconfigured its Webwasher filtering software to block all access to blogs on state computers.

Nickolas filed suit and, represented by Public Citizen, raised two primary arguments that the policy was unconstitutional under the First Amendment. First, he argued that the policy was adopted specifically to target his blog and therefore constituted viewpoint discrimination, the worst form of government action under the First Amendment. Aside from the suspicious timing of the policy, Nickolas relied on internal state email showing that, despite public claims to the contrary, the governor’s office had ordered the ban on blogs and had specifically requested that the URL of Nickolas’s site be added to the “blacklist.” Moreover, Nickolas obtained the declaration of the former state official charged with administering the state’s computer systems at the time the policy went into place, who was told that the decision to ban blogs came from “high up” and was designed to hide the decision to ban Nickolas’s site in “a bunch of other stuff.”

Second, Nickolas argued that, even if the ban were not aimed specifically at his site, the state nevertheless violated the First Amendment by singling out blogs for special restrictions while ignoring other sorts of websites with comparable content. State records showed that the number of hits to news and political blogs from state computers was a small fraction of the millions of hits received each day by mainstream news sites like the Lexington Herald-Leader, the New York Times, and CNN.com. The state could offer no rational explanation for its decision to focus solely on blogs while ignoring other websites reporting the same information (especially since even blogs on mainstream news sites remained accessible). Moreover, Kentucky continued to allow access to many other categories of websites that served no work-related purpose and that received more traffic than blogs, including webmail, newsgroups and message boards, sports sites, shopping sites, financial and stock-trading sites, and others.

The case was the first to challenge a state’s decision to block access to blogs on state-owned computers. The most analogous case is the Fourth Circuit’s en banc decision in Urofsky v. Gilmore, where several Virginia professors sued over a law prohibiting access on state computers to sexually explicit materials. 216 F.3d 401 (4th Cir. 2000). The professors asserted that they needed access to the materials to fulfill their research, writing, and teaching responsibilities. That assertion, however, ultimately proved fatal to the professors’ claims when the court held that, because the professors were performing these duties in their capacities as state employees rather than as private citizens speaking on issues of public concern, their First Amendment rights were not implicated. Urofsky‘s reasoning suggests that if the professors had instead relied on restrictions to their personal use of state computers, the court would have evaluated the law’s constitutionality under the Supreme Court’s decision in Pickering v. Board of Education, 391 U.S. 563 (1968). Pickering and a line of cases following it established a balancing test for determining the constitutionality of a government’s restrictions on its employees’ speech, weighing the employees’ First Amendment interest in access to the restricted materials against the employer’s interest in maintaining order in the workplace.

Unlike the professors in Urofsky, Nickolas did not challenge the state’s restrictions on what employees could read pursuant to their job-related responsibilities. Kentucky, like many other employers, had long allowed its employees to use state-owned computers for personal as well as work-related purposes as long as that use did not interfere with performance of job responsibilities. Pursuant to Kentucky’s policy, employees could and frequently did read online news sites, including blogs, from workplace computers. The state’s decision to block access to the blogs while still allowing access to other news sites imposed on its employees its own preferences about which sources of news were acceptable and which were not. Nickolas argued that, even if the state had the power to entirely ban personal use of workplace computers (a proposition that Nickolas did not dispute), it did not have the power to selectively allow access to only those news sites it approved as sources of news. It was simply not a proper role for government, Nickolas argued, to decide which websites were legitimate news sites and which were not.

In the settlement finalized yesterday, Kentucky reserved its right to regulate use of computers in the workplace, but agreed to do so in a viewpoint-neutral manner that treats blogs the same as equivalent non-blog websites. Although a decision on the legality of blog-banning policies will be left for another day, the case should at least cause public employers to think twice before cutting their employees off from a large and important piece of the online political discussion.

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.

Other coverage:

Arizona state court adopts three part test for unmasking anonymous online speakers

Test adds an additional “balancing of the competing interests” element to the Cahill test

Mobilisa, Inc. v. Doe, — P.3d —-, 2007 WL 4167007 (Ariz. App. November 27, 2007)

Plaintiff filed suit in Washington state court against an anonymous (“John Doe”) defendant which it accused of violating the Computer Fraud and Abuse Act and the Stored Communications Act. Doe allegedly accessed the plaintiff’s computer system and obtained a copy of an “intimate” email which he forwarded to a number of people.

Plaintiff served a subpoena on Doe’s Arizona-based email provider, seeking to uncover Doe’s true identity. The email provider and Doe individually, through counsel, objected, but the Arizona court ordered that Doe’s identity be revealed. The court looked to the 2005 case of Doe v. Cahill which requires (1) that the anonymous party sought to be unmask be given notice of the proceedings, and (2) that the party seeking the identity of the anonymous party put forth sufficient facts to survive a motion for summary judgment.

Doe appealed the lower court’s order which required he be identified. On appeal, the Arizona Court of Appeals remanded the matter back to the trial court. It held that although the court correctly applied the two Cahill factors, it should have considered a third factor, namely, a balancing of the relative interests of the parties. Consideration of this third factor, the court held, would help ensure that the important First Amendment rights at issue in anonymous speech cases would be adequately protected.