On Friday, I had the pleasure of speaking at AIPLA's Annual Meeting. I spoke during the session entitled "Blog On! Thoughts on Patent Blogging from Inside and Outside the Blogosphere" with Aaron Feigelson, Karen Hazzah, Jacob Ward, Dennis Crouch, and Donald Zuhn.
In addition to being part of the panel, I gave a presentation on Legal Issues Involved in Blogging. If you missed the presentation, you can download the Powerpoint presentation or the written materials for my part of the session. If you attended the session, please let me know what you thought.
In a recent case in the United States District Court for the Central District of California, the court granted the Plaintiff's motion for summary judgment in what was a matter of first impression for the court. J.C. v. Beverly Hills Unified School District, 711 F.Supp.2d 1094 (C.D.CA. 2010). In this case, a highschool student sued the school district and school administrators for violating her constitutional right to free speech when the school suspended her for posting a video clip on YouTube. The Plaintiff made the video, while hanging out with friends at a restaurant off-campus, in which the group of students made derogatory, sexual and defamatory statements about a 13-year old classmate. The Plaintiff contacted five to ten students from school and told them to watch the video on YouTube. The Plaintiff also contacted the subject of the video and told her that it was posted on the internet.
The subject of the video was very upset by it and came to school with her mother the next day to make the school aware of the harassment. School administrators watched the video on-campus, demanded that Plaintiff delete the video from YouTube and from her home computer, and suspended Plaintiff from school for two days. Plaintiff brought suit contending that the school violated her First Amendment rights by punishing her for speech that had taken place entirely outside of school. While there is a plethora of student speech precedents, there has yet to be a "student speech case addressing hurtful and embarrassing speech directed at a student's classmate, which emanated outside of school grounds."
The court held that the fact that the Plaintiff's conduct took place entirely outside of school did not preclude the school from disciplining the student. The court relied on Second Circuit precedent that "territoriality is not necessarily a useful concept in determining the limit of [school administrators'] authority." Doninger v. Neihoff, 527 F.3d 41 (2d Cir.2008). "This is especially true today where students routinely 'participate in…expressive activity…via blog postings, instant messaging, and other forms of electronic communication.'" Beverly Hills United School Dist., 711 F.Supp.2d at 1106 (citation omitted).
Nonetheless, the court held that there was no substantial disruption, or reasonably foreseeable risk of substantial disruption, of school activities as a result of the video, and thus, discipline of the student violated the First Amendment. The court relied on the seminal Supreme Court student speech test from Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The court found that at most, the school had to address the concerns of an upset parent, the subject of the video and the students who made comments in the video missed some undetermined portion of class, and a fear that the students would "gossip" or "pass notes" in class did not rise to the level of a substantial disruption. Thus, the court granted the student's motion for summary judgment on the First Amendment claim.
However, the court also granted the administrator's claim for qualified immunity because the constitutional right was not clearly established at the time of the violation, as this issue was a matter of first impression for the court.
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