Online Speech

By David L. Hudson Jr., First Amendment Scholar, and Rebecca DeVerter, Legal Intern

Updated March 2018

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 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.” More recently, , the concern has become whether school officials can, in a manner 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: “[u]nfortunately, 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 there is still uncertainty over  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: “[e]ach school district shall adopt a policy prohibiting harassment, intimidation or bullying and prohibiting cyberbullying.” Kansas law defines cyberbullying as: “[b]ullying 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 crucial  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. Further, some would argue that the matter would be one for parental discipline, rather than school discipline.. Former First Amendment Center Executive Director Ken Paulson has written: “[t]here 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 in Thomas 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 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 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 Website 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.  In this case, student Brandon Beussink created a Web page at his home, using vulgar language to criticize various school officials and other aspects of the school environment.

The school principal suspended Beussink because he was upset by the content of the webpage.  While Beussink did not use school computers to actually create his Web page, he accessed the site from computers in the school library. . 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 Website 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’s 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: “[w]e believe that the Website, 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 Website. Swidler argued that the Web site was beyond school officials’ control because he created it off-campus. The court disagreed, writing: “[w]e 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 Website was vulgar and highly offensive. School officials  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.

The issue of student cyberspeech continues to become a pervasive problem, especially as various social media platforms are continuously developing.  Courts have recently faced an array of questions regarding students cyberspeech conducted both on and off school grounds, and each unique situation posed different questions for the courts.

In 2011, a high school student in West Virginia was suspended “for five days for creating and posting to a MySpace.com webpage called “S.A.S.H. … which was largely dedicated to ridiculing a fellow student.”  This led to the case of Kowalski v. Berkeley County Schools, where Kowalski alleged “that the School District was not justified in regulating her speech because it did not occur during a ‘school-related activity,’ but rather was ‘private out-of-school speech.’”

Citing Tinker, the Fourth Circuit held that “in the circumstances of this case, the School District’s imposition of sanctions was permissible.  Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment….”  The court acknowledged the unique characteristics of the schoolhouse environment, and affirmed the fact that the rights of students are not the same as the rights of adults.  Therefore, because the MySpace page served as a hate site that directed verbal attacks towards another student, the court concluded that “this is not the conduct and speech that our educational system is required to tolerate, as schools attempt to educate students about ‘habits and manners of civility…’”

While there are a number of examples in which courts have supported school discipline over student’s cyberspeech, there have been other situations in which the courts have ruled that students’ First Amendment speech rights have been violated.  In 2014, a student named Reid Sagehorn was suspended from school and faced expulsion because of a two-worded tweet he had made.  Sagehorn responded “[a]ctually yeah” to “an anonymous ‘Roger confessions’ post that said Sagehorn had ‘made out’ with a female teacher.”  Sagehorn argued that the tweet was not serious, and that the administrators “could not find evidence of an inappropriate relationship between Sagehorn and the teacher after an investigation.”

At trial, the school district moved for judgment on the pleadings, which was denied by the District Court for the District of Minnesota.  Further, looking at the First Amendment challenges that had been posed by Sagehorn in the lawsuit, the court determined that “Sagehorn ha[d] adequately pleaded a violation by the individual School Defendants of a clearly established First Amendment right[.]”  The court reaffirmed the notion that the First Amendment also applied to students, and quoted Tinker in saying that “students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”  While the school officials argued that Sagehorn’s speech fell outside of the realm of First Amendment protection, relying on the second prong of the Miller community standards test, the court determined that the Miller exception “is reserved for extreme cases.”  Further, the court said that Sagehorn’s response of “actually yes” “is not nearly as graphic as the content courts have found obscene as a matter of law.”  Additionally, the court proceeded to say that “as social norms and societal standards have evolved, modern obscenity prosecutions have become less frequent and have targeted language much more vulgar than that used by Sagehorn.”  The court then compared the cyberspeech conducted by Sagehorn to “speech that would not be considered obscene[.]” By engaging in that comparison, the court ruled that Sagehorn’s First Amendment claim “survives the argument that his speech was obscene and unprotected.”  

The Supreme Court has yet to hear a case that addresses the issue of student cyberspeech, which ultimately leaves open many questions as the lower courts make divided opinions.  

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 school’s 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.