By M. Alex Johnson Reporter
msnbc.com
updated 1/23/2009 7:20:19 AM ET 2009-01-23T12:20:19

Avery Doninger has put off going to college so she can volunteer with AmeriCorps — at least when she’s not in court.

Doninger, 18, graduated from Lewis Mills High School in Burlington, Conn., last June, but she has not left it behind. She is at the center of a landmark free-speech case, stemming from her days at the school, that appears headed for the Supreme Court.

Doninger was a star student at Mills, and in 2007 she wanted to run for senior class secretary, a position that included the honor of speaking at her graduation ceremony.

But Karissa Niehoff, the school’s principal, rejected Doninger’s candidacy over a personal blog entry Doninger posted from her home computer. In the posting, Doninger reported — inaccurately, it turned out — that a school event she had helped organize had been canceled. She blamed “douchebags in central office” for the supposed cancellation and reported that a flood of complaints had “pissed off” the school district’s superintendent.

Doninger ran as a write-in candidate and won, only to be barred from taking office. That led her mother to sue the school district on her behalf. The Doningers lost this month in U.S. District Court; their attorney promised to appeal the decision all the way to the Supreme Court.

To Doninger, the case hinges on her First Amendment right to freedom of expression.

“I think that it’s really important for students to stand up for their rights, because if we don’t maintain democracy on the lowest levels, we’ll never be able to maintain them on the highest levels,” she said.

But to school officials, Doninger is a cyberbully whose writings threatened to disrupt operations at the school.

“When kids are in a position of privilege, there are certain standards of behavior we expect them to uphold,” Niehoff said. “Our position stands for respect. We’re just hoping kids appreciate the seriousness of any communication over the Internet.”

Suicide sparks a national debate
Doninger’s case, which runs contrary to the student-as-victim storyline typical of cyberbullying cases, illustrates the difficulty legislators and authorities are encountering as they try to rein in what experts say is an increasingly common and virulent form of harassment.

Connecticut does not have a law against cyberbullying, defined by the National Crime Prevention Council as the use “the Internet, cell phones, or other devices ... to send or post text or images intended to hurt or embarrass another person.” The state has an anti-bullying statute on the books, but it says nothing about the Internet and electronic communications, and it addresses only situations in which students are the victims.

But states’ efforts to bring some clarity to the realm of new communications technologies like blogs, instant messages and e-mail have done little to resolve when threatening or unruly behavior trumps freedom of speech, said Jeffrey Shaman, a First Amendment scholar at the DePaul University College of Law in Chicago.

  1. Numerous organizations offer information about cyberbullying and guidance on how to respond:
    1. • Cyberbullyhelp.com
    2. • Project Safe Kids
    3. • Wired Safety
    4. • Stop Cyberbullying
    5. • Safe Schools Coalition

“Prohibiting the libelous speech, prohibiting (and) regulating true threats, regulating harassment under certain circumstances — these laws need to be more precisely defined,” he said.

The issue of cyberbullying became the focus of a national debate last year, after Lori Drew, 49, was prosecuted in connection with the suicide of 13-year-old Megan Meier of Dardenne Prairie, Mo., in October 2006.

Believing Megan had spread rumors about her own daughter, Drew and an employee of her small business assumed a false identity, that of a 16-year-old boy. After winning Megan’s trust, they began sending her venomous messages through her MySpace account.

“You are a bad person and everybody hates you,” said the last message sent to Megan from the fake account, according to court documents. “Have a [expletive] rest of your life. The world would be a better place without you.

  1. An msnbc.com-NBC News report
    1. Alex Johnson is a reporter for msnbc.com. The following NBC stations contributed to this report: KBJR of Duluth, Minn.; KSDK of St. Louis; KYTV of Springfield, Mo.; WAVE of Louisville, Ky.; WMBF of Myrtle Beach, S.C.; WOAI of San Antonio, Texas; and WVIT of Hartford, Conn.
Later that day, Megan was found hanging from her neck in a closet; she died the next day.

Local prosecutors concluded that there was no law addressing Drew’s behavior, and they declined to press charges. But in May, a federal grand jury in Los Angeles, where MySpace.com has its headquarters, indicted Drew on charges of accessing protected computers without authorization to obtain information to inflict emotional distress — in other words, violating MySpace’s terms of use by faking an identity.

Drew was convicted of three misdemeanor violations of the federal Computer Fraud and Abuse Act and faces a maximum of three years in prison when she is sentenced in April.

The case was closely followed in Internet forums and blogs, in which many commentators complained that Drew was being prosecuted for ignoring the fine print of her MySpace account, not for a role in driving Megan to kill herself. And in its wake, a national movement to clamp down on cyberbullying — psychological abuse by and of children through the Internet — was born.

Biggest online threat to children?
According to the members of a task force appointed to assess protections for children on the Internet, more needs to be done.

In a report last month, the task force — appointed by a coalition of 49 state attorneys general (a spokeswoman said Texas Attorney General Greg Abbott did not take part and did not endorse the findings) — concluded that while online sexual predation of minors generated more headlines, “bullying and harassment, most often by peers ... (were) the most frequent threats that minors face.”

The report, which was directed by the Berkman Center for Internet & Society at Harvard University, cited 2007 research indicating that 1 in 6 American middle-school students had been the targets of cyberbullying, with effects ranging from depression to anxiety to “negative social views of themselves.” Separate research last year by the U.S. Centers for Disease Control and Prevention found that as many as a third of all children had been the victims of online bullying.

Among numerous other technological and social recommendations, the task force called for law enforcement to allocate more resources for training, technology and enforcement to protect children from online bullies.

At least 35 states have enacted new laws or updated old laws to address bullying on the Internet. Some of those are general cyberstalking prohibitions that are not specifically targeted at schools, while others generally require local school districts to develop and enforce cyberbullying policies, as hundreds of districts across the nation have done already.

That leaves it up to local school officials — who may or may not be well versed in online etiquette or the twists of constitutional law — to weigh the need to shield some students from harassment against the rights of others to speak freely. And it has led to a patchwork approach to the problem.

The school district in Duluth, Minn., for instance, monitors all e-mail sent using students’ district accounts under what it calls the Internet Safety Program. It also offers parents monitoring equipment so they can keep track of their children’s social networking activities at home.

If a student’s e-mail message includes “bullying-type words or inappropriate words in general, then we’ll send that e-mail to a section where an administrator has to review it,” said Keith Anderson, the district’s coordinator of media techonology.

In the Northside Independent School District in San Antonio, Texas, on the other hand, schools actively block social networking sites, among them MySpace and Facebook, said Joyce Stevens, the district’s director of technology.

The policies usually go beyond addressing students who bully students. More and more, authorities are responding to online attacks by students on teachers and administrators, as in the case of Avery Doninger.

“The problem of young people targeting teachers and other school staff is one that appears to be growing,” said Nancy Willard, director of the Center for Safe and Responsible Internet Use, a nonprofit group in Eugene, Ore. Such attacks can be anything from “just a comment that’s negative about a teacher to really serious kinds of incidents.”

Constitutional doubts linger
Most such laws and policies have been enacted only in the past year or so, making it difficult to gauge their effectiveness. Still, they do give school officials tools to work with, administrators say.

“As far as making it clear this is inappropriate and not going to be tolerated, it’s nice to have language clearly stated in legislation and a potential policy in the future,” said Pam Hedgpeth, superintendent of the Republic School District in Missouri, which passed a cyberbullying law last year in the wake of Megan Meier’s death.

But legal experts say state laws and local policies are problematic, bumping up as as they do against First Amendment protections of freedom of speech.

“Permitting school officials to restrict student speech in the digital media expands the authority of school officials to clamp down on juvenile expression in a way previously unthinkable,” Mary-Rose Papadrea, a law professor at Boston College specializing in media law, wrote in the October edition of the Florida Law Review.

Papandrea zeroed in on a particularly contentious point for skeptics — the assumption that school administrators can punish students for what they write on their own time away from school, a question that is at the heart of Avery Doninger’s suit.

“Because digital speech is generally nowhere and everywhere at the same time,” Papandrea wrote, “permitting school officials to restrict such speech simply because it is accessed on school grounds, because it is somehow directed to the school grounds, or because it was reasonably foreseeable that it would come to the attention of school officials gives schools far too much authority to restrict the speech of juveniles generally.”

Little guidance from the courts
Courts remain divided over whether administrators’ power to regulate students’ online writings extends off campus, said David L. Hudson, a legal scholar for the First Amendment Center at Vanderbilt University in Nashville, Tenn.

“It will probably take a decision by the U.S. Supreme Court to provide the necessary guidance to resolve these thorny issues,” Hudson concluded in a legal analysis for the center in August.

Even Kentucky Attorney General Jack Conway, who supports his state’s recently passed law requiring school officials to report cyberbullying to police, says: “I’ll readily grant that this is a gray area. It’s a tough area.”

Judges who have ruled in the case of Avery Doninger wrestled with that question before ruling that school officials were justified in punishing her for her off-campus postings.

“The Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that, like Avery’s, does not occur on school grounds or at a school-sponsored event,” wrote a three-judge panel of the 2nd U.S. Circuit Court of Appeals in rejecting Doninger’s initial appeal in May.

Without such guidance, the panel said, it could rely only on case law that predates the spread of the Internet.

“Avery’s post created a foreseeable risk of substantial disruption to the work and discipline of the school,” they wrote, adding that under that test, the record “failed to show clearly that Avery’s First Amendment rights were violated.”

Doninger acknowledges that the posting was “not my finest moment.”

“I’ve never been in trouble,” she wrote in an essay accompanying her college applications. “I am an engaged student, yet I did use an unsavory word.”

But “I believe in democracy,” she wrote. “I believe in the Constitution and the Bill of Rights. I believe that each citizen is responsible for participating in the maintenance of democracy by challenging government officials when they overreach.

“The principal accused me of failing to be a good citizen. I disagree. Apathy and passivity are poor citizenship.”

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