Twin Lee's Summit North students were suspended in December 2011 for 180 days because of their blog. They are now suing the Lee's Summit school district because they say one racist post cited by the district was posted by a third unidentified student, not them. They claim (a) they can't be held responsible for something someone else posts, (b) their right to write whatever they want off school property and off school time is no business of their school administration and protected under First Amendment rights and (c) the 180-day suspension could screw up their scholarship hopes and college careers. I think the twins might be missing point (d), which is you probably shouldn't get a scholarship anyway if your blog is a safe haven for any kind of racist or sexist commentary.
Blogger Responsibility for What Others Post
If the suspension is over the racist post put up on the twins' blog by someone else, the suspension probably won't hold up legally. According to the Lee's Summit Journal:
Jean Maneke, a Kansas City media law attorney, said she does not know what the school’s basis for the twins’ subsequent suspensions were.
But she said that, under federal law, the twins “don’t have liability for what some third party put on their website, if that’s true.”
I looked up the Communications Decency Act of 1996, and it is true a blogger can't be held responsible legally for what other people post. Section 230 says:
In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:
The defendant must be a "provider or user" of an "interactive computer service."
The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue.
The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.
So, rest assured -- bloggers won't be legally held liable for what their commenters post.
Legality vs. Ethics
After that, it gets really, really hairy. This video alleges the twins themselves targeted a female student in several posts, calling her a bitch a few different times.
In the video, one student said the blog looked like it was affiliated with Lee's Summit North and was called North Press. The lawsuit is focusing on a racist post made by a third party -- and that third party should be held responsible for that stupidity -- but I'm really surprised at the lack of focus on the twins for what they allegedly wrote about the girl.
I get that students shouldn't be punished for something they themselves didn't do. I also feel the pain of parents worried a very poor teenaged decision could harm their children's chances at college scholarships or being able to take the ACT and SAT in the spring. And ... I live in Lee's Summit. I might actually know these parents somehow. And I think they are wrong in bringing a lawsuit instead of getting behind the school district and telling the twins to lie down in that bed they made.
Legally the school district may or may not be found to have overstepped their bounds in suspending the twins. Ethically, I don't think it matters. I only know the facts I've read in the stories quoted here, but it appears the blog was set up in a way to provide a private, safe haven to trash students among a group of friends, like a slam book on the Internet. It also sounds like the twins aren't sorry they did it, but they're sorry they got caught. I don't see an apology anywhere in any of these stories, not for the girl, not for the racial group affected by the third party's post, not by the third party for that idiocy, not by the parents for their children's behavior. I see a lawsuit over not-yet-earned potential scholarships.
From the legal complaint:
Plaintiffs are good students, earning mostly A’s and B’s in their course work, with no significant history of disciplinary infractions at LSNHS.
5. Both Plaintiffs are deeply involved the band and theater programs at LSNHS and planned on participating in the LSNHS band during their 12th grade year.
6. The Plaintiffs aspire to attend college, in part, on band scholarships.
I'm actually pretty shocked at the audacity of this lawsuit.
According to the The Lee's Summit Journal, the school district says the suspension has nothing to do with the third party's post.
Contrary to the plaintiffs’ complaint, the school district’s response also contends that evidence will show the twins did create and access their blog on school property, using school computers, during school hours and that it “unquestionably” caused a “substantial disruption to the educational setting at Lee’s Summit North High School, as well as other schools in the District.”
The response also includes three excerpts from the blog laced with racially and sexually charged language, which could not be published in a public setting.
So the kids published a post(s) so lewd it can't be quoted in a newspaper on a blog that looked like it was affiliated with their high school about kids who attended their high school and the school district shouldn't be allowed to punish them as it sees fit because they might risk scholarships? Don't scholarships usually have a component involving good character as well as good grades and school activities? And isn't a blog saying hateful things about other students, regardless of the reason but particularly if they fall under the umbrella of hate crimes unequivocally indefensible?
One of the boys testified in court Monday. He said the blog, North Press, was satirical and was only intended to be seen by a handful of friends who have the same sense of humor.
An attorney for the Lee's Summit School District said the website contained highly explicit sexual material and racially insensitive remarks and the suspensions were justified.
Lee's Summit North High School students were abuzz in December about the blog called North Press. The website's 40 pages of racially insensitive rants were scrubbed after KCTV5 began investigating.
These are teens, and teens are known to have impulse control issues. I doubt these kids are horrible people -- life is seldom black and white and they are kids, first and foremost. They are kids who need adults -- like their parents and the school administation -- to explain to them what is and isn't acceptable behavior in civilized society. Hate speech and bullying is not acceptable in civilized society. Ever. Especially in a public school. No matter whose scholarship-they-might-get is on the line. The lesson that will be taught if these kids get off with a slap on the wrist is what I'm most worried about. Remember the No Homo Promo school board?
According to Student Law Press Center, a federal judge has moved the case up and scheduled it for this week. Several cases recently have upheld school districts' rights to punish students for online bullying when it's brought to their attention, so it will be interesting to see if this judge lines up with others in decisions shaping how kids, schools and the Internet are legislated going forward. I'm rooting for the Lee's Summit school district and I think it should be applauded for having no tolerance for this type of speech.
Rita Arens authors Surrender, Dorothy and is the editor of the award-winning parenting anthology Sleep is for the Weak. She is the senior editor for BlogHer.com.