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
work weeks, you wouldn’t think that lawyers would be
blogging. However, a Google search of
“blog” returned 146 million results. And
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
Personal Touch: Blogging puts a human face on the
legal profession. Blogs provide a more personal form
with both potential and current clients. While the
website allows individuals to choose attorneys based on their personal
bios, blogs allows clients to experience first hand an
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
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
by becoming an active reader of blogs even if you don’t
write one. There is an abundance of great content made
daily on blogs related to the legal profession. If you do
to create a legal blog, you should use caution and common
Adding a disclaimer
to your blog might give you the freedom of mind to blog away without
opening yourself up to potential litigation.
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
for competent legal advice
If in need of a legal advise or services, you should contact a licensed
attorney in your stateSample
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,
and www.friendster.com have become popular in large part because of
students. While these websites may define themselves
either as an “online directory,” or “a
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
to have a greater impact, because it allows a single individual to
communicate to a potentially unlimited audience. How the
uses this infinite podium will be one of the most important
considerations in conducting your legal analysis.
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
to blogging is a violation of their rights to free speech.
Whether the censorship is in fact a violation depends on the facts of
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
the speech “materially disrupts classwork or involves
disorder or invasion of the rights of others." This principle
known as the Tinker “material disruption”
The “material disruption” standard was used as a
finding that a school can punish a student for use of “vulgar
offensive” terms. How courts determine what is a
“material disruption” and what speech is
“offensive” is fact intensive analysis and changes
on the views of the court. Because this is a flexible
it is uncertain what rights a student blogger has and what a school can
do lawfully to censor a student’s blog.
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
c) Revealing Information: Disclosing a student’s name,
friends’ names, school name, location of school, class
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
Of the previous examples, the legal analysis is easier for some than
others. For example, the threatening speech used by the
in Chicago would likely not be considered protected speech.
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
v. Hermitage SchoolsLayshock v. Hermitage Sch. Dist., 2006
U.S. Dist. LEXIS 3602
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
his grandmother’s home computer. The parody was
the website’s template which requires user answers to
questions, the theme of the parody involved
The parody also included a photo of the principal obtained from the
school website. Listed is a sample of
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."
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.
Violation of Free Speech protected by the 1st Amendment.
& Current Status:
Parents sought a temporary restraining order In order to grant a TRO,
the court must analyze the plaintiff’s likelihood of
the merits Legal Analysis: Students like other citizens have the right
to free speech, however, cases involving public schools require special
the student’s speech substantially disrupt school operations
interfere with the rights of others? Court found potential disruptions:
Disruption to classes because of technology problems; general
disruption to the overall school environment –
abuzz”; Violation of the School’s Technology Policy
court found that the parents had not demonstrated a reasonable
probability of success based on their First Amendment claims.
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.
appears that this court had a relatively low threshold for
In the legal analysis conducted in the previous section, the blogger
was a student at a public school and blogged from home. You
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
As discussed previously, the First Amendment protects a
right to free speech. However, this doesn’t mean
person can say anything without consequences. Rather the
Amendment protects an individual’s right to most types of
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
As a general rule, students at a private school will receive no
protection from censorship by those schools. A New York court
a recent case, upheld a school’s right to expel a student
the school found the content on his personal web site to be
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
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
protect its students.
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
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
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.
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
content of his personal website, the “Unofficial”
webpage. Emmett v. Kent School District, 92 F. Supp.2d 1088
Wash. 2000) The court stated,”[a]lthough the
audience was undoubtedly connected to Kentlake High School, the speech
was entirely outside of the school's supervision or control."
the school had some control over the forum, the court likely would have
not found a violation of the student’s First Amendment
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
freedom of speech in the United States, this protection
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
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
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.
While economic freedom is expanding daily, political freedom is moving
along at a much slower pace. The Chinese government continues
punish dissidents, including jailing some for online
However, the emergence of blogging may produce greater freedoms of
speech. There are currently 600,000 bloggers in
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
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
government and the bloggers, however, few bloggers comment on issues
sensitive to the Government.
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
went to cyberspace, where they instructed others to begin
blogging. Current estimates of blogs in Iran range from 70 to
thousand, a significant percentage of the population. To
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
government has put limits on certain types of blogging, there is
evidence that they are using blog for their own goals.
the Iranian government founded a contest for the best blogs about the
Islamic Revolution and the Quran.