Do students have any privacy rights on social networking sites? [Guest Post]

This guest post is by Judge Tom Jacobs who runs http://askthejudge.info, a teen-law web site for and about tweens and teens and the laws that affect their lives.

Most teenagers today have a Facebook, MySpace or Twitter page to stay in touch with new and old friends.  They have the option of keeping their messages limited to their “private” list of friends or going public with them.

Does your teen think that what they do on their computer at home is private and their school has no say?  Can they be disciplined at school for something they said online or in a text message?  What about creating a fake profile critical of a teacher – even if they didn’t send it to him or her?  Should they expect an email sent to a few friends to stay private?

There is no question that students have free speech rights under the U.S. Constitution.  In 1969, the Supreme Court said that students and teachers don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” [Tinker v. Des Moines School District] But free speech is not an unlimited right. For example, you can’t stand up in a crowded theater and yell “Fire!” and hope to get away with it.

In the Tinker case, the Court allowed students to wear black armbands to school in a silent protest of the Vietnam War.  The Court ruled that if the student’s speech did not disrupt the educational environment at school or violate anyone’s personal rights, the speech was protected and permissible.

The Tinker disruption test has been applied to hundreds of cases since it was established forty years ago. Student expression from T-shirt logos and messages, campaign buttons, hair color and styles, and religious symbols have undergone the Tinker test. Courts have ruled for the student in some cases and for the school in others.

Now courts are faced with a new phenomenon – students in the digital age. New technologies allow students to express themselves faster and potentially to a worldwide audience. What are the limits? Can they say anything they like without fear of consequences? As one federal court said in May, 2009, “When it comes to student cyber speech, the courts are in complete disarray.”

The question that courts across the country are wrestling with is “Can a student be disciplined at school for off-campus online speech?” This may also apply to off-campus text messages that affect the school environment. The Supreme Court has not yet heard a case about student online expression. But the chances it will in the next few years are good. Some cases that have been decided both for and against students involved screensavers, hacking, email, access to computers at school, online threats, guestbook comments, IM icons and message boards.

Let’s take a look at a case that may make its way to the Supreme Court. It involves a blog.

Avery Doninger was a 17-year-old junior in Connecticut. She was the class secretary for three years and planned to run again in her senior year. Every spring the school held a battle-of-the-bands called Jamfest and the school council helped plan it. The 2007 Jamfest had been cancelled several times and it was facing another cancellation. Avery and three other class officers sent an email out from school asking supporters to contact the school and protest any further cancellation. Then Avery went home and wrote in her private blog the following:  “jamfest is cancelled due to douchebags in central office . . .here is a letter or call her [superintendent] to piss her off more.”

As a result, the school experienced a higher than normal number of calls and emails regarding Jamfest. The principal told Avery that she violated school policy regarding the behavior of a class officer and would not be allowed to run again for office. Avery and her mother challenged the school’s action claiming her right to free speech protected her private blog written from home. Her case remains in the courts and it may be the one that the Supreme Court agrees to hear regarding student online speech.

A more recent case regarding student online privacy involves 13-year-old Mandi Jackson of Mississippi. Her cheerleading coach required the girls on the squad to give her the passwords to their social networking accounts. She supposedly was checking for photos of kids drinking or smoking. Mandi, considering the coach to be an authority figure, disclosed her password. The coach went into Mandi’s Facebook page and read messages between Mandi and another girl. Because they included some profanity the coach shared them with the school’s administration. Mandi was cut from the squad and once word got out, was shunned by other students. In July, 2009, Mandi and her mother sued the school district and the coach for $100 million for violating her privacy and freedom of speech.

Until there is a ruling that applies to all students, your teen should assume nothing is private and that their thoughts and writings, once posted, may have unintended consequences.

This guest post is by Judge Tom Jacobs who runs http://askthejudge.info, a teen-law web site for and about tweens and teens and the laws that affect their lives.

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