The real danger online is predatory prosecutors

Child protection zealots convinced that cyberspace is a playground for paedophiles may not have welcomed a recent finding that widespread online sexual solicitation of children by adults is more mythic than real.

According to an internet safety task force directed by the Berkman Center at Harvard Law School (and created by 49 state attorneys general), the risks confronting minors online ‘are not radically different in nature or scope than the risks minors have long faced offline, and minors who are most at risk in the offline world continue to be most at risk online’. Harassment and bullying are the most common online risks for children, and sexual encounters initiated online are more likely to occur between minors than between minors and predatory adults, or they tend to resemble statutory rape cases, in which coercion is presumed under age-of-consent laws.

But minors who have ‘fully integrated the internet into their daily lives’, as the Berkman report notes, do face increasing threats from abusive adults – not paedophiles, but prosecutors and school officials eager to punish teenagers for what they say and do online. In the most grievous cases, child-porn laws supposedly aimed at protecting minors are being used to prosecute them for ‘sexting’ – texting nude pictures of themselves. Last month, child-porn charges were brought against six teenagers in Greensburg, Pennsylvania, when three girls emailed nude pictures of themselves to three boys: the girls were charged with manufacturing, disseminating or possessing child porn; the boys were charged with mere possession.

In Florida, a boy and girl who photographed themselves having sex were charged with producing, directing or promoting child porn, even though they did not post or otherwise share their photos with anyone. The girl pled no contest and was placed on probation; she lost a constitutional challenge to the charges on appeal. In Texas, a boy was reportedly charged with possession of child porn when he received a nude picture on his mobile phone. Similar charges have been brought against teens in states around the country.

As these cases suggest, child-porn laws are alarmingly easy to violate and hard to defend against. In Arizona, a 57-year-old man with no criminal record was sentenced to 200 years in prison for downloading 20 images of child porn on his computer; each image constituted a separate count of possession carrying a mandatory 10-year sentence. (The Arizona’s highest court upheld the sentence, in State of Arizona v Morton Robert Berger, and the Supreme Court declined to review its constitutionality.)

Teenagers caught ‘sexting’ may be prosecuted in juvenile court where records are sealed, but depending on their ages and circumstances and the inclinations of their prosecutors, they could conceivably face felony convictions, draconian sentences, and the prospect of being required to register as sex offenders and losing fundamental liberties (whenever they’re released from prison), such as the right to live where they choose.

If the possibility of imprisonment for ‘sexting’ or other stupid teenage tricks seems remote, consider the case of Hillary Transue, sentenced to three months in juvenile detention for making fun of her school’s assistant principle on MySpace. Transue, charged with harassment, had the bad luck to be brought before Judge Mark A Ciavarella, recently convicted, along with a colleague, of taking over $2million in kickbacks from the operators of two privately operated juvenile detention centres, in exchange for providing them with inmates. We can hope that corruption like this isn’t common, although the privatisation of prisons has made it more likely.

Procedures designed to protect juveniles can also leave them at the mercy of corrupt judges: juvenile proceedings are generally closed, and in many states, juveniles can waive their right to counsel. Hillary Transue’s sentence wasn’t typical; most students aren’t imprisoned for mocking their principals, but many are disciplined, if not prosecuted for it.

Anxious about the anarchic power of online speech, school administrators are punishing students for criticising their teachers or schools on their own time and their own blogs or social networking sites. (The Student Press Law Center tracks these and other speech cases.) Occasionally students successfully challenge the actions of school officials, but federal courts are, at best, unreliable defenders of student speech rights. In 2007, in Morse v Frederick, the Supreme Court upheld disciplinary action against a student for holding a nonsensical ‘Bong Hits 4 Jesus’ sign an at an off-campus, school-supervised event; the sign promoted illegal drugs, the court declared, and the dangers of drug-use justified its suppression.

Judges are sometimes equally hostile to internet use. Last month, in Doninger v Neihoff, a federal appeals court rejected a First Amendment challenge by Avery Doninger, who, as a high school junior, was disciplined for criticising school administrators on her blog: she referred to them as ‘douche bags’, for allegedly cancelling a concert (the fact of the cancellation was in dispute), and exhorted her fellow students to call or write to the district superintendent to ‘piss her off more’. As a result, Doninger, the junior class secretary, was denied the right to run for senior class secretary; when she won the election as a write-in candidate, she was denied the right to serve. She and her supporters were also denied the right to wear ‘Team Avery’ t-shirts at a school assembly.

This controversy may seem trivial to anyone not still in high school, but it proved legally consequential, imposing significant limits on student speech rights. The appeals court questioned the decision of school officials to prohibit ‘Team Avery’ t-shirts (the case will go to trial on that point), but it confirmed their power to deny Doninger the right to run or serve as class secretary, reasoning that serving as a class officer was a privilege (an irrelevancy if Doninger was punished for exercising her First Amendment rights) and that her remarks ‘posed a reasonably foreseeable risk of coming on to school property’. In other words, Doninger lost the right to speak because of the likelihood that she’d be heard.

Schools are not supposed to enjoy unfettered power to suppress student speech: pursuant to a landmark 1969 Supreme Court decision, Tinker v Des Moines, students have the right to engage in non-disruptive speech, even on school grounds. Tinker involved the right to wear black armbands to school in a protest against the Vietnam War. But that decision seems increasingly unlikely to survive the internet age unscathed, as school officials and federal judges grapple with the question of whether online speech is, in effect, inherently or presumptively disruptive, especially when it offends administrators, for whom the World Wide Web is an excuse for exercising world-wide jurisdiction over students. Several important challenges to school authorities are pending, including two cases before a federal appeals court in Pennsylvania involving students who were punished for mocking their school principals online.

In 2005, Justin Layshock (then a high-school senior) posted a fake MySpace profile of principal Eric Trosch, on his own time and his own computer, mocking the principal as a ‘big steroid freak’, a drunk, and a ‘big whore’. Trosch was not amused; he reported Layshock to the police, accusing him of harassment (no criminal charges were filed), and after an informal hearing, Layshock was suspended for 10 days, placed in an alternative education programme for troubled students, and banned from extra-curricular activities as well as graduation ceremonies.

The punishments were eventually rescinded after Layshock filed suit, and in 2007, in Layshock v Hermitage School District, a federal district court held that the school had violated his First Amendment rights. The school appealed, arguing that administrators should have power over student’s off-campus speech because of ‘the great change in electronic communication’, which gives students a ‘much more effective way’ of being heard. The court was reportedly sceptical of the school’s claims, and a decision is pending.

The court may be less sympathetic to a challenge by two eighth-grade girls suspended in 2006 for creating a fake MySpace profile of their principal, whom they described as a ‘sex addict, fagass, put on this world with a small dick PRINCIPAL’ – a paedophile who enjoyed ‘hitting on students and their parents’ and ‘fucking in my office’. The students were charged with violating the school’s discipline code, which prohibits false accusations against staff members; they were also held in violation of a computer-use policy barring students from appropriating copyrighted material without permission. (The girls had used a photo of the principal posted on the school’s website.)

One of the students, identified as ‘JS’ sued the school but lost her challenge in a lower federal court, which found her mockery of the principal unprotected speech, ‘even if it arguably did not cause a substantial disruption’. The court stressed that the MySpace profile was not only ‘vulgar’ and ‘lewd’ but apolitical and undeserving of the protection afforded the anti-war protests at issue in Tinker. Acknowledging the contrary decision upholding Justin Layshock’s rights to parody his principal on MySpace, the court observed that the parody created by JS was ‘much more vulgar and offensive’. JS has appealed (the case is JS v Blue Mountain School District).

I doubt many people would be outraged if JS loses her appeal (as I suspect she will), but witlessness and puerility are constitutionally protected, the right to post a parody of your principal on MySpace should not depend on any judge’s view of its relative vulgarity, and, in any case, students are being disciplined for much tamer online speech. Katherine Evans, for example, was suspended during her senior year in high school, in 2007, for creating a Facebook group lambasting her English teacher and inviting fellow students to ‘express your feelings of hatred’ for the teacher and ‘her insane antics’. Evans deleted the Facebook page a few days later, after receiving few responses, some of which were critical of Evans and not the teacher she had ridiculed. School was not disrupted, and Evans may have embarrassed herself more than her teacher; the case seemed closed. But two months later, Evans was charged with ‘cyberbullying’, suspended for three days, and prohibited from taking an advanced placement English course. Concerned about the stain on her record, Evans (now a college freshmen) is suing the school for violating her First Amendment rights.

This case makes clear the indiscriminate fear and loathing of the internet often shared by school administrators and prosecutors. Evans would probably not have been charged with bullying or harassment had she been overheard making the same remarks about her teacher in an off-campus conversation with a group of classmates. It was her medium more than her message that aroused the ire (or paranoia) of administrators and gave them a rationale for policing her off-campus speech. ‘The mere fact that the internet may be accessed at school does not authorise school officials to become censors of the World Wide Web’, the court in Justin Layshock’s case observed. Free speech advocates can only hope that the Supreme Court will eventually agree.

Wendy Kaminer is a lawyer, writer and free speech activist. She is the author most recently of Worst Instincts: Cowardice, Conformity, and the ACLU, to be published by Beacon Press in May 2009. (Order this book from Amazon(UK).)

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