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Cyberspeech

Tuesday, April 9, 2002

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 Childrens 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 decision Tinker 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?)

Threshold issues
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, Oregons 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 students 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 students 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 students
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 in Thomas v. Board of
Education, Granville Central School District (1979), writing: our willingness to defer to
the schoolmasters 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
schools 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 Tinker standard. 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 dont 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 students
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 Courts 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:

Was the content created as part of the school curriculum, such as a class project or school
newspaper?
Was the content created on school computers?
Was the content distributed (particularly by the student who wrote the material) at
school?
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 students speech is not an acceptable


justification for limiting student speech under Tinker, the judge wrote. The public
interest is not only served by allowing Beussinks 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
students 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 the Fraser and
Tinker standards. The school could punish Swidler under Fraser because 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 in Doninger 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.

Conclusion
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:

Whether school officials have any legal authority to regulate student online expression
created off-campus.
Whether and under what standard school officials can regulate off-campus student speech
that is distributed at school either by the student who created it or other students.
Whether school officials have more authority to regulate student online speech if it is
created off-campus but contains a link to the schools own Web site and is aimed directly
at the school audience.
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.

Updated August 2008

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