By David L. Hudson Jr., First Amendment Scholar
Updated August 2008
The Internet has revolutionized communication throughout the world, allowing people to correspond instantaneously at relatively low cost. Federal Judge Stewart Dalzell called the Internet the “most participatory form of mass speech yet developed.” However, this speech-enhancing medium has led to numerous controversies, causing many people to view the Internet as the premier First Amendment battleground.
Many Internet free-speech battles concern laws that restrict content, such as the Communications Decency Act and the Child Online Protection Act, and laws that mandate Internet filtering in public libraries or schools, such as the Children’s Internet Protection Act.
But the Internet has presented another, pressing First Amendment question unique to public schools: Under what circumstances may school officials punish students for the content of their online expression? In its famous 1969 decisionTinker v. Des Moines Independent Community School District, the U.S. Supreme Court wrote that students do not shed their free-expression rights “at the schoolhouse gate.” In more recent times, the concern has become whether school officials can, consistent with the First Amendment, extend their authority from the schoolhouse gate to students’ personal computers. Some school officials have extended their authority by punishing students for online speech even though students created the speech off campus. In many cases, students have turned to the Internet to express themselves about principals, teachers and other students.
The area remains muddled because the Supreme Court has never addressed a student Internet speech case and has not addressed a pure First Amendment student speech/press case since 1988. As the Pennsylvania Supreme Court wrote in 2002 in J.S. v. Bethlehem Area School District: “Unfortunately, the United States Supreme Court has not revisited this area for fifteen years. … Moreover, the advent of the Internet has complicated analysis of restrictions on speech.” The issue becomes only more important as more and more students not only access the Internet frequently but also create their own home pages on social-networking sites such as MySpace or Facebook. (See Student Online Expression: What Do the Internet and MySpace Mean for Students’ First Amendment Rights?)
One threshold question is whether the student cyberspeech in question is a true threat. Under First Amendment law, true threats do not receive First Amendment protection. The Supreme Court defined true threats in the cross-burning decision Virginia v. Black as follows: “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
The lower courts have developed different tests, but many ask whether an objective, rational recipient of the statement would reasonably believe it to be a threat.
Another form of online expression that may not cross the line into true threats is cyberbullying — where one student harasses or intimidates another student online. Some but not all cyberbullying could qualify as a true threat. State legislators and school officials have addressed the problem by passing laws or policies to punish students who engage in such behavior. Many states have passed laws that require school districts to adopt policies that address cyberbullying.
For example, Oregon’s law provides: “Each school district shall adopt a policy prohibiting harassment, intimidation or bullying and prohibiting cyberbullying.” Kansas law defines cyberbullying as: “Bullying by use of any any electronic communication device including, but not limited to, e-mail, instant messaging, text messages, blogs, mobile phones, pagers, online games and websites.”
One potential problem is that a broad definition of cyberbullying could include almost any online or electronic student speech that another student finds offensive. It will take litigation for this area of the law to develop.
Another threshold question is whether the student’s online expression can be characterized as on-campus or off-campus speech. Some people argue that school officials do not have jurisdiction over student Internet expression that takes place off campus. The matter would be one for parental, not school, discipline, they argue. Former First Amendment Center Executive Director Ken Paulson has written: “There is no legal justification for censoring a student’s expression in the privacy of his home.”
Cases outside the online arena provide guidance. For instance, a federal district court in Maine ruled in Klein v. Smith (1986) that school officials violated the constitutional rights of a student when they suspended him for gesturing at a teacher with his middle finger raised at an off-campus restaurant. The judge determined that the student’s disrespectful act was “too attenuated” with school functions to be punishable by school officials.
Similarly, the 2nd U.S. Circuit Court of Appeals rejected school officials’ attempts to shut down an underground student newspaper sold off campus inThomas v. Board of Education, Granville Central School District (1979), writing: “our willingness to defer to the schoolmaster’s expertise in administering school discipline, rests, in large measure, upon the supposition that the arm of authority does not reach beyond the schoolhouse gate.”
Likewise, a federal district court in Washington ruled in Emmett v. Kent School District No. 415 (2000) that student Internet speech created off campus is “entirely outside of the school’s supervision or control.”
While these decisions provide support for the principle that school officials do not have jurisdiction to regulate student speech created off campus, most courts that have examined off-campus online speech have applied the so-called Tinkerstandard. In Tinker, the Supreme Court ruled that school officials could censor student-initiated expression if officials could reasonably forecast that the speech created a substantial disruption or material interference with school activities or invaded the rights of others. However, the Court emphasized that school officials may not suppress student speech simply because they don’t like it or out of what they termed “undifferentiated fear or apprehension.”
At least one court (Pennsylvania Supreme Court, J.S. v. Bethlehem Area School District, 2002) has determined that school officials may have authority to regulate off-campus speech under a more recent Supreme Court case, Bethel School District No. 403 v. Fraser (1986). In Fraser, the Court determined that school officials could regulate a student’s lewd speech before a school assembly. The Court reasoned that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”
Sometimes, school officials may argue for even greater control over student Internet speech under the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988). In Hazelwood, the Supreme Court ruled that Hazelwood school officials could censor articles on teen pregnancy and divorce in the student newspaper. The Court established the Hazelwood standard, which provides that school officials can regulate school-sponsored student speech if they have a reasonable educational reason for doing so. For example, if a student created a Web site on school grounds using school computers during a class, the school would have broad authority under Hazelwood to silence the expression and punish the student.
Pertinent questions for determining which standard applies in a particular case include:
If the student created the material as part of the school curriculum, school officials could apply the Hazelwood standard. If the content was created on school computers, Hazelwood might apply. If the content was created off campus but distributed by the student on school grounds, most courts would apply the Tinker standard and some might apply the Fraser standard.
Student Internet cases
Students generally have broad freedom to express themselves on the Internet on their own time, using off-campus computers. However, some school officials have suspended students for their off-campus Web postings that lampooned or criticized school officials or contained vulgar commentary.
Some courts have sided with the students, saying that school officials may not censor student speech unless they can reasonably forecast that the speech will cause a substantial disruption of the school environment or invade the rights of others. Other courts and commentators have said that school officials simply lack the authority to regulate students’ off-campus behavior — on or off the Internet.
The lower courts certainly have decided the student Internet speech cases differently. For example, a federal court in Missouri ruled in Beussink v. Woodland R-IV School District (1998) that school officials violated the First Amendment rights of a student when they suspended him for 10 days for his home page that criticized the school. The case involved student Brandon Beussink who created a Web page at his home that used vulgar language to criticize the principal, teachers and other aspects of the school environment.
Beussink did not use school computers to create his Web page, though he did access his home page from computers in the school library. The school principal suspended Beussink because he was upset at the content of the Web page. After he was suspended, Beussink sued alleging a violation of his First Amendment rights. A federal judge agreed, finding that the principal committed a legal error in punishing Beussink simply because he disliked the content of the home page.
“Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker,” the judge wrote. “The public interest is not only served by allowing Beussink’s message to be free from censure, but also by giving the students at Woodland High School this opportunity to see the protections of the United States Constitution and the Bill of Rights at work.”
However, in 2002 the Pennsylvania Supreme Court reached the opposite conclusion in another student Internet speech case. The case involved a Web site created by Justin Swidler that contained derogatory comments about a math teacher and the principal. Much of the site was devoted to ridiculing the math teacher, comparing her to Adolf Hitler and making fun of her appearance. The site even contained a phrase that said “give me $20 to help pay for the hitman.”
School officials expelled Swidler, citing the extreme emotional distress suffered by the math teacher and the disruption the Web site caused at the school. Swidler argued in a lawsuit that his Web page was a form of protected speech.
The Pennsylvania courts, including the Pennsylvania Supreme Court in 2002, sided with the school district in J.S. v. Bethlehem Area School District. In examining the case, the state high court first determined whether the speech was a true threat. School officials argued the speech was a true threat, focusing on the language about paying $20 for a hit man. However, the high court disagreed, writing: “We believe that the Web site, taken as a whole, was a sophomoric, crude, highly offensive and perhaps misguided attempt to humor or parody. However, it did not reflect a serious expression of intent to inflict harm.”
The high court then determined whether school officials had the authority to regulate the student’s Web site. Swidler argued that the Web site was beyond school officials’ control because he created it off-campus. The court disagreed, writing: “We find there is a sufficient nexus between the web site and the school campus to consider the speech as occurring on-campus.” The court determined the speech occurred on campus because the student accessed the site at school, showed it to a fellow student and informed other students of the site. “We hold that where speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech,” the court wrote.
The court then reasoned that school officials could punish Swidler under theFraser and Tinker standards. The school could punish Swidler under Fraserbecause the Web site was vulgar and highly offensive. It could punish him under Tinker because the Web site caused a substantial disruption of school activities.
Most courts have applied the Tinker “substantial disruption” test to student online speech cases. For example, the 2nd Circuit ruled in May 2008 inDoninger v. Niehoff that school officials could punish a student for blogging critical comments about a school administrator. “We have determined, however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ or at least when it was similarly foreseeable that the off-campus expression might also reach campus,” the court concluded.
The different results and reasoning used by the courts in these cases show that the issue of student Internet speech is far from settled. The courts are divided on several important legal questions, including:
Washington trial court Judge William Thomas McPhee may have said it best in his 2000 decision in Beidler v. North Thurston School District: “Schools can and will adjust to the new challenges created by … students and the internet, but not at the expense of the First Amendment.”
It will probably take a decision by the U.S. Supreme Court to provide the necessary guidance to resolve these thorny issues of student cyberspeech.