Punchback: Answering Critics

Vicious Blog Postings: Are You Protected?


I heard that the Hitlerish administrator was fired from his last position at Fantasy Land School District (name altered to protect those involved), as well. How did he EVER get hired in our district? Any future school district thinking of hiring that loser should do the research to see what a piece of crap he really is. Let them call me; I’ll give them an earful!”

Michele HandzelMichele V. Handzel

The superintendent referenced in these vicious comments lost his job at a small, rural school district in downstate New York after three tumultuous years, due to unwarranted personal attacks waged by the public. The daily bloggers in the local newspaper demanded his removal as superintendent and regularly included posts that demeaned, vilified and humiliated the superintendent.

The superintendent worked with the county’s district attorney to subpoena the local newspaper to name the anonymous bloggers. After the newspaper hired one of the nation’s leading First Amendment lawyers to fight the subpoena, the state court denied the request. As a result of the negativity in the community, the superintendent was forced to negotiate an early end to his contract and has since been unable to secure any other employment in the public school system.

Lingering Questions
Career assassination by venomous blogging is more common as superintendents find themselves the subject of blog attacks created by disgruntled students, employees, parents and even school board members. What remedies are available to superintendents? Perhaps the answer lies in analyzing off-campus speech by anonymous bloggers.

A good place to start is to analyze the content the same way you would for off-campus speech when deciding whether a student can be punished. Does this speech cause a material and substantial interference to the school (the standard established in 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District et al.)? Do the remarks threaten you personally? Or does the speech advocate for illegal activity, and if so, can you connect the origin of the off-campus speech to on-campus activity?

Identifying the author(s) behind the postings is especially challenging because most sites allow anonymity to users. Sometimes, individuals may use their name on the blog postings, but this is rare. Even worse, you may not be aware these blogs exist until you are confronted with this information by colleagues in the school district, by community members at a school board meeting, or by search consultants and questioners during a job interview.

Defamation Defined
The general rule is that everyone in the United States is guaranteed the freedom of speech, unless the words are used to incite violence, are threatening, advocate illegal or dangerous behavior, or are lewd or vulgar. Citizens are entitled to their opinions, so even if you are referred to as “the worst superintendent,” this comment probably is not enough to be actionable in a court of law.

Superintendents have the right to sue an individual for defamation, breach of contract and even social criminality such as stalking and electronic harassment. As public officials, superintendents must prove malice with clear and convincing evidence and must prove the statement(s) damaged his or her professional reputation, resulting in loss of future employment or monetary losses.

Superintendents should consider a few more questions regarding the Tinker standard when deciding what to do about being the target of untrue and hurtful blog posts. Were classroom activities interrupted? Students discussing things at school is not enough to establish a material interruption. Is the off-campus blogging violent or threatening to the victim? Were school officials taken away from regular duties to respond to the off-campus blogging?

These same questions should be applied to off-campus blogging. Blog postings can criticize, but they cannot materially disrupt school activities.
A decision to take legal action against an individual for malicious blogging is complex because the blogger may not be anonymous. The blogging could be emanating from a board member leaking executive session information on a social networking site to hurt the superintendent. If the blogger is anonymous, even law enforcement may not be entitled to the poster’s identification.

The facts will determine whether the blogger is entitled to First Amendment protection. The facts will have to demonstrate that the false statement caused damages beyond just hurt feelings. If the facts demonstrate that the blog posting disrupted school activities, there may be enough facts to create a connection between the blog postings and the disruption of school activities for the court to force the online bloggers out of hiding behind their anonymity.

What’s Ahead?
Regulating off-campus speech made by students or adults is an unsettled area of law, but it always will depend on the facts of the matter. Recent federal cases give some indication that courts are willing to rule in favor of school districts and school administrators.

Superintendents must consider which battles are worthy of pursuit, even when the words are flying fast and furiously and cause considerable pain and anguish when they hit.

Michele Handzel is general counsel for the New York State Council of School Superintendents in Albany, N.Y. E-mail: michele@nyscoss.org