By David L. Hudson, Jr.
April 21, 2009
One of the most fascinating areas of First Amendment jurisprudence concerns whether public school (K-12) officials can punish students for off-campus, online expression. The headlines inform us on a weekly, if not daily, basis of school administrators punishing students for offensive, obnoxious, inappropriate or disturbing expression posted online.
The scenarios differ in specifics but typically involve a student posting comments on the Internet that criticize an administrator, teacher or fellow student who is plainly identified in the post. Administrators then must decide not only whether they have jurisdiction over the matter but also what to do about it.
The threshold question concerns whether school officials have the authority to regulate such off-campus expression. A student and his parents could argue that the matter is really a question of parental – not school – discipline. However, most reviewing courts have determined that school officials can regulate such student speech, particularly if the ”intended audience” of the speech is the school community or if the online, off-campus student speech has real world consequences at school.
Assuming the school has jurisdiction, the question then becomes what legal standard applies to speech that does not actually take place inside the ”schoolhouse gates.” So far, most courts looking at online, off-campus speech have applied the same standard that historically has been applied to on-campus speech, as set forth in 1969 by the United States Supreme Court in Tinker v. Des Moines Independent Community School District, colloquially known as the ”black armband case.” In Tinker, public school officials punished students for wearing black armbands to protest U.S. involvement in the Vietnam War. Noting that students don’t ”shed” their free-speech rights at ”the schoolhouse gate,” the Court ruled that school officials may censor student speech only if they can reasonably forecast that the speech will cause a substantial disruption of school activities or invade the rights of others.
Most courts invoke Tinker to apply this ”substantial disruption” standard to online speech; thus, the question becomes whether a student’s online speech caused a substantial disruption of school activities, such as shutting down the school’s computer lab, interrupting class discussions to a significant degree, or causing a teacher to suffer emotional distress. One lower court determined that ”disliking student speech is not an acceptable justification for limiting it under Tinker.” This means that a school administrator can’t punish obnoxious student online speech simply because he or she doesn’t like it – they must point to something that shows that it has or will cause a substantial disruption.
A caveat is the other, oft-ignored part of Tinker, which addresses situations where student speech invades the rights of other students. The U.S. Supreme Court has never explained this phrase from Tinker, but a lower court conceivably could apply it to online speech that strongly denigrated a specific student or group of students.
If online student speech contains profanity, vulgarity or lewdness, then a court might apply a different standard from a later U.S. Supreme Court decision — Bethel School District v. Fraser (1986). In that decision, the Court ruled that public school officials could punish a student for a sexually-laced speech before the student assembly. The Court ruled that officials have the power to regulate vulgar or lewd student speech even if such vulgar speech does not cause a substantial disruption. This means, for example, that public school officials can prohibit students from wearing clothing with profane messages. It is an open question whether the so-called Fraser standard applies to online speech, but certainly a well-informed school district will advance that argument.
Still another legal standard may apply if online student speech crosses the line into truly threatening expression. True threats are not protected by the First Amendment; thus, online student expression that threatens other persons may subject the student to discipline not only by the school but also law enforcement officials. Some students have faced criminal charges for true threats posted online.
Students must also be aware that their online posts can expose them to civil liability in addition to school discipline or criminal charges. A student may be subject to civil liability for posting a false statement about a teacher, administrator or other person that harms the person’s reputation. For example, if a student posts on his blog that ”Teacher A is a convicted sex offender,” and this is untrue, the teacher may sue the student for defamation. Teachers in several states have filed defamation suits against students for allegedly false, defamatory statements.
The law in this area is still developing, but it is clearly important for students to understand that the Internet – for all its speech-enhancing capabilities — is not a legal-free zone. Students must be aware that their online posts can have real-world consequences.
David L. Hudson Jr. is a Middle Tennessee–based attorney who has authored or co-authored more than 20 books, including The Silencing of Student Voices: Preserving Free Speech in America’s Schools (First Amendment Center, 2003).
Tinker v. Des Moines Ind. Comm.School Dist., 393 U.S. 503 (1969).
Bethel School Dist. v. Fraser, 478 U.S. 675 (1986).