i. Introduction

In a website dedicated to the legal issues related to blogging, we would be remiss if we failed to include a section on blogging for lawyers.  In a world filled with billable hours and eighty hour work weeks, you wouldn’t think that lawyers would be attracted to blogging.  However, a Google search of “law” and “blog” returned 146 million results.  And by searching the Internet a little more closely you will find a variety of very good blogs dealing with all sorts of legal issues and matters of importance to lawyers. 


ii. Reasons to Blog

Personal Touch:  Blogging puts a human face on the legal profession.  Blogs provide a more personal form of communication with both potential and current clients.  While the firm’s website allows individuals to choose attorneys based on their personal bios, blogs allows clients to experience first hand an attorney’s legal reasoning and communication skills.   

Sharing Expertise: Blogs allow legal professionals a forum in which to share legal expertise that has taken years and sometimes decades to acquire.

Marketing: Attorneys who have added blogs to their websites often have experienced dramatically increased readerships.
   
Read even if you don’t write:  You can join the blogosphere by becoming an active reader of blogs even if you don’t actually write one.  There is an abundance of great content made available daily on blogs related to the legal profession.  If you do decide to create a legal blog, you should use caution and common sense. 


iii. Legal Disclaimer

Adding a disclaimer to your blog might give you the freedom of mind to blog away without opening yourself up to potential litigation.

Suggestions for a disclaimer:

This blog is made available for educational purposes only

This blog may provide general information or a general understanding of the law, however, it in no way provides specific legal advice

Use of the blog site does not provide an attorney client relationship with the blogger    This blogsite is not a substitute for competent legal advice

If in need of a legal advise or services, you should contact a licensed attorney in your stateSample

i. Introduction

The explosive growth of blogs is illustrated perfectly in American schools.  A recent study by the Pew Internet and American Life project indicates that one in five students operates a blog, while twice as many students read blogs regularly.  

Well known internet sites such as www.xanga.com, www.facebook.com, www.myspace.com and www.friendster.com have become popular in large part because of students.  While these websites may define themselves differently, either as an “online directory,” or “a place for friends,” or “weblog community.”  They all provide the same basic service, which allows students to communicate quickly and easily on the internet.

While e-mail, chatting, and instant messaging allowed students a quick and easy way to communicate with one other over the internet and emerged several years before blogging.  Blogging has the potential to have a greater impact, because it allows a single individual to communicate to a potentially unlimited audience.  How the blogger uses this infinite podium will be one of the most important considerations in conducting your legal analysis. 


ii. Student’s Right to Free Speech

Many students create online journals or blogs as a way to express themselves creatively.  The students feel that censorship or a ban to blogging is a violation of their rights to free speech.  Whether the censorship is in fact a violation depends on the facts of each case.   

When schools attempt to monitor or govern student blogs, they are most concerned with content of the blogs.  In legal cases involving student blogging, courts are likely to examine the same thing.

While it is well recognized that students have a right to free speech, a student’s right is more limited than the public at large. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  The court in Tinker, found that a student’s right to free speech can be limited when the speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others."  This principle is known as the Tinker “material disruption” standard. 

The “material disruption” standard was used as a basis for finding that a school can punish a student for use of “vulgar and offensive” terms.  How courts determine what is a “material disruption” and what speech is “offensive” is fact intensive analysis and changes depends on the views of the court.  Because this is a flexible standard, it is uncertain what rights a student blogger has and what a school can do lawfully to censor a student’s blog.


Real-world Examples of Students Posting Questionable Content:

a) Threatening Language: Students in a Chicago high school used xanga.com to post threatening comments about a teacher, stating that her neck should be cut “like a…chicken”

b) Embarrassing teachers and administrators: A Pennsylvania student’s parody of his principal garnered him a suspension from school.

c) Revealing Information: Disclosing a student’s name, friends’ names, school name, location of school, class schedules is common place on sites frequented by students.

d) Provocative Pictures: Some students have posted provocative pictures of themselves on their blogs, these pictures are accessible by the general public now and may be accessed by a future employers later. 

Of the previous examples, the legal analysis is easier for some than others.  For example, the threatening speech used by the students in Chicago would likely not be considered protected speech.  On the other extreme, students disclosing information about themselves is protected and will be hard for schools to control. 

One of the more interesting cases involves the parody of the Pennsylvania principal.  The summary of this case is listed below. 


Layshock v. Hermitage SchoolsLayshock v. Hermitage Sch. Dist., 2006 U.S. Dist. LEXIS 3602

Facts: In late 2005, Justin Layshock, an honor student at a public high school in Pittsburgh, created a parody of the school’s principal on myspace.com.  The profile parodying the principal was created on his grandmother’s home computer.  The parody was based on the website’s template which requires user answers to specific questions, the theme of the parody involved “big.”  The parody also included a photo of the principal obtained from the school website.    Listed is a sample of Justin’s responses to various questions:

Q: In the past month have you smoked?
A: ”big blunt”

Q: Drink alcohol?
A: "big keg behind my desk."

Q: "ever been beaten up?
A: "big fag”

Q: "in the past month have you gone on a date?”
A: "big hard-on."

Q: Birthday?
A: "too drunk to remember"

When school officials learned of the parody, they suspended Justin for 10 days, placed him in an alternative learning program at school and disallowed him from participating in school sponsored events. 


Legal Claim: Violation of Free Speech protected by the 1st Amendment.

Procedure & Current Status: Parents sought a temporary restraining order In order to grant a TRO, the court must analyze the plaintiff’s likelihood of successes on the merits Legal Analysis: Students like other citizens have the right to free speech, however, cases involving public schools require special analysis   

Analysis: Did the student’s speech substantially disrupt school operations or interfere with the rights of others? Court found potential disruptions: Disruption to classes because of technology problems; general disruption to the overall school environment – “school was abuzz”; Violation of the School’s Technology Policy

Conclusion: The court found that the parents had not demonstrated a reasonable probability of success based on their First Amendment claims.

Takeaway: While this was only a preliminary finding by a district court, it demonstrates a courts potential analysis of a student’s First Amendment claim where the student was punished for blogging.  It appears that this court had a relatively low threshold for “material disruption.” 



iii. Legal Distinctions

In the legal analysis conducted in the previous section, the blogger was a student at a public school and blogged from home.  You can see from the two distinctions listed below, the analysis is simpler when the blogging involves either a student at a private school or the blogger was blogging on school computers.  In either case, the school will have much greater recourse in dealing with the student’s blogs and the students will have more limited protections. 


Public v. Private

As discussed previously, the First Amendment protects a person’s right to free speech.  However, this doesn’t mean that a person can say anything without consequences.  Rather the First Amendment protects an individual’s right to most types of speech from being infringed by the government. 

It is well recognized that both private and public school students have the right to free speech.  However, the First Amendment only protects that speech from being censored by the government not a private party. 

As a general rule, students at a private school will receive no protection from censorship by those schools.  A New York court in a recent case, upheld a school’s right to expel a student where the school found the content on his personal web site to be offensive.   Ubriaco v. Albertus Magnus High School, No. 99 Civ. 11135 (JSM) (S.D.N.Y. July 21, 2000).  Another interesting note on the Ubriaco case was that the internet website was a personal website and not in anyway connected with the school.  Using the reasoning found in the Ubriaco case, a private school student with a school or personal blog would have little expectations for protection against censorship by his or her school. 

Because private schools have a great right of censorship than public schools, there have been some recent headlines involving private schools banning their students from creating blogs.  One such example is Pope John XIII Regional High School in New Jersey.  There school administrators have required their students to destroy any previous myspace.com account or similar site (including online profiles or blogs).  The school has rationalized its decision as a need to protect its students. 


iv. Blogging at School vs. Blogging at Home

Generally, schools have the legal right to limit a student’s ability to blog from school.  Many schools have implemented the following precautions to deal with student blogging:

a) Prohibiting students from using school computers for personal use

b) Specifically banning student blogging while at school

c) Implementing technological barriers, which deny students access to blogsites

d) Generally, schools have significant latitude in administering the education of their students and as such can likely implement any of the polices listed above. 


v. School Sponsored Blog vs. Personal Blog

Additionally, a student blogging at home on a school sanctioned blog may have less freedom of speech rights than a student posting to a personal blog.  A Washington court found a violation to a student’s free speech where the school punished a student for the content of his personal website, the “Unofficial” school webpage.  Emmett v. Kent School District, 92 F. Supp.2d 1088 (W.D. Wash. 2000)  The court stated,”[a]lthough the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school's supervision or control."  Had the school had some control over the forum, the court likely would have not found a violation of the student’s First Amendment rights.    

i. Introduction

The emergence of blogging is not limited to North America.  As computers and internet access have become more affordable across the globe, blogging has taken off world-wide.  One of the really interesting legal issues related to international blogging is freedom of speech in other countries.  While the First Amendment protects freedom of speech in the United States, this protection doesn’t extend to citizens of other countries. 

Listed below is sample of new stories involving countries, where blogging has resulted in a struggle between freedom of speech and government censorship:

ii. India
A blogger in India, Gaurav Sabnis, may have been forced to quit his job with IBM after commenting on advertising and claims made by the Indian Institute of Planning and Management.  It appears that the IIPM pressured IBM to fire the employee, reportedly threatening to burn the Thinkpads that IBM had supplied.  The employee contends that he quit on his own volition. 

iii. China
While economic freedom is expanding daily, political freedom is moving along at a much slower pace.  The Chinese government continues to punish dissidents, including jailing some for online activities.  However, the emergence of blogging may produce greater freedoms of speech.  There are currently 600,000 bloggers in China.  While the bloggers tend to comment on their personal lives, there is a tendency to leave politics alone.  When bloggers cross the imaginary line between “good” and “bad” speech, there are consequences.  A female blogger, Muzimei, described sexual experiences and was then shut down by the government censors.  There continues to be a tug of war between the Chinese government and the bloggers, however, few bloggers comment on issues sensitive to the Government. 

iv. Iran
A Canadian blogger was detained, interrogated and forced to apologize for his blogging before being allowed to leave the country.  Several Iranian bloggers have been harassed by government officials for publishing opposing views.  While the government controls all other forms of communication, including television and newspapers, the government is struggling to control blogging.  The Iranian blogging community actually sprang to life in 2001, when over one hundred newspapers and magazines were shut down.  The writers then went to cyberspace, where they instructed others to begin blogging.  Current estimates of blogs in Iran range from 70 to 100 thousand, a significant percentage of the population.  To counter this communication the Iranian government has setup a censoring operation that rivals China.  One method of censoring outlaws Iranians from accessing non-Islamic websites. Most of the blogs are apolitical, instead focusing on society, culture and sex.

Blogs also provide an opportunity for members of the opposite sex to communicate in a society that forbids openly dating.  While the government has put limits on certain types of blogging, there is evidence that they are using blog for their own goals.  Recently, the Iranian government founded a contest for the best blogs about the Islamic Revolution and the Quran.