The question of what public school students have the right to say, and where they have the right to say it, remains murky, with little in the way of definitive jurisprudence to guide schools and courts. Indeed, just about the only thing experts on the topic seem to agree on is that no one really knows what the law is.
"There have been some court decisions, and in all honesty they've been a little bit confused," says Mark Goodman, the executive director of the Student Press Law Center. "And it really isn't just Internet-based speech, but actually any kind of expression by students outside of school. There really have been relatively few cases going to court on this issue, so it's understandable [to a certain extent] why there would be some confusion surrounding it."
Goodman, for his part, believes that the law is on the students' side.
"In a public school, I believe the law's pretty clear that the school does not have the authority to punish students for expression they engage in outside of school. There are really important fundamental reasons for that. At the very least, it's a major usurpation of parental authority. Outside of school, parents have the authority to discipline their children ... I think the problem is a lot of people simply presume that the Internet in effect becomes school expression, and I simply don't believe it does. I think there are legally important distinctions, and very good policy reasons why the school shouldn't have that authority."
Marc Rotenberg, who teaches information privacy law at the Georgetown University Law Center and is the executive director of the Electronic Privacy Information Center, believes the issue is not so clear-cut.
"The key point is whatever is publicly accessible," Rotenberg says. "If a student writes an article in the town paper that defames one of the teachers, the fact that it didn't happen in a school publication really is irrelevant. The school will still act on that information if it's public and available to the community ... The courts have not, particularly in the last few years, been sympathetic to student privacy claims, and I don't think there's any reason to think it would be otherwise when the conduct is posted to publicly available Web sites ... The critical point here is that yes, I think students should have the freedom to express their views, and I don't think there should be any type of prior restraint on publication, whether it's in print or online media. But that doesn't mean what you say may not have some repercussions."
There are no such questions about whether the police have a right to patrol MySpace.
"If it is a public forum that is accessible to others, then presumably the police are welcome to participate, as they would be welcome to enter a shopping mall or something like that," Rotenberg says.
Kurt Opsahl, a staff lawyer with the Electronic Frontier Foundation, a nonprofit organization whose mission is to defend Internet free speech, agrees.
"You have of course a Constitutional right not to incriminate yourself, but you have to exercise that right by not incriminating yourself," Opsahl says. "If you post a photo of yourself engaged in apparently illegal activity with text confirming what you're doing, that can be used against you. Anything you say can and will be used against you, as they say in the Miranda warnings."
But according to James McNamee, MySpace's younger users, or at least the ones he sees in his virtual patrols, haven't yet caught on to that.
"Some people criticize MySpace, and there's no reason to criticize it," he says. "It's a social networking Internet site that's doing a great function, in my view. The problem is young people aren't sure how to handle it yet. They're not understanding that it's the World Wide Web, they don't get that concept. They think only their friends are looking at it."
Eight MySpace users in Wilkes-Barre, Penn., learned the hard way that the people visiting their MySpace profiles were not just friends. Wilkes-Barre police, stumped by a rash of graffiti in the downtown area, turned to MySpace to seek suspects.
"The police dug very deep to find me," says one of those arrested in the case, who asked to remain anonymous because of ongoing legal proceedings, and who would communicate only through MySpace. "I didn't have my name, phone number or any info on me online. I've never used my real name, I've never had my own Internet connection (always another person's name), and I never had my address or name at all posted or registered online."
That user, who denies any involvement in the graffiti, says he was aware of the public nature of the site -- "I always think that people are looking," he says -- but that some of his friends were not, and that he thinks the police overstepped their bounds.
"I feel that police shouldn't lie and disguise their identity to gain friendship with people they can't see, or ever meet without [informants]."
Dimitri Arethas also feels his rights were violated. "A home page is basically as private as it gets," he told the Observer at the time of his suspension.
When asked recently if he still felt that way, his answer was much the same.
"Private like exclusive to only your friends? No, not that kind of private," he said. "[But] someone has to personally seek out your name and find you in order to view your MySpace, which is what stirs me up. That's where I got some sense of privacy. I could have never imagined someone printing out my profile page and then turning it in."
Mark Goodman worries about the lessons students like Arethas will learn as more face consequences for what they post to sites like MySpace.
"What I would hate to see happen, and I think it has happened in some communities at least, is students deciding they can't publish unpopular or controversial viewpoints on their MySpace page or an independent Web site because they're afraid school officials will punish them for it. That, I think, is very disturbing, and those are the young people who, as adults, are going to believe the government should be regulating what the public says. It has very troubling implications for their appreciation of the First Amendment in the world outside of school."
Arethas says that he has become more cautious about what he posts. "Gotta play the political game now," he says. He took his MySpace profile down for a week after the incident, but decided to put it back up -- without the offending photo -- when he realized, he says, that he "could pretty much get away with it," and that he "had won the case" by being reinstated to school. He still believes the school was wrong to suspend him.
Goodman thinks, though, that few students would act as Arethas did. He points to a study on high school students' attitudes toward the First Amendment, conducted by researchers at the University of Connecticut. Released early last year, the study found that 49 percent of students thought that newspapers should need government approval for their stories, 75 percent didn't realize flag-burning was legal and more than a third thought the First Amendment went too far. Half believed the government could censor the Internet.
"I think the point of it, ultimately, is how can we expect anything different [than the survey results]," Goodman says. "A direct result of these actions is young people's dismissiveness of the fundamental values of free expression that we as a nation supposedly hold dear."
The MySpace user arrested in the Wilkes-Barre case agrees.
"I think that MySpace is the epitome of free speech, and censorship, all rolled in one. And I think that America with[out] free speech is not free at all. Just think about the people that have been censored. Go to another country, like Denmark and there is no censorship at all, and the kids growing up there don't look at it as dirty, just as life. When we make things illegal, or 'dirty to look at' we create the feeling that it's bad."
About the writer
A contributing editor with SMITH, a new magazine about storytelling, Alex Koppelman is the media critic for Dragonfire, an online magazine, and has appeared on CNN Headline News, Fox News, MSNBC and CourtTV as a commentator on legal issues.
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