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Free Speech Student Speech

"It must be recognized that students do not shed their constitutional rights [on the school district's onramp to the Information Superhighway] Tinker v. Des Moines, 393 U.S. 503 (1969) (Slightly restated)

The issue of students' rights to free speech in the material transmitted through the Internet will arise in a number of ways:

  • Student speech in public, discussion group messages.

  • Student speech in private e-mail messages.

  • Student speech posted on a district web site, including material posted in classroom sections, the school newspaper, and, if allowed by the district, material posted on an individual student web page or on an extracurricular organization web page.

  • Student speech posted on another web site that has been accessed through the district system.

  • Student speech that pertains to the school, teachers, or other students and that appears on a personal web site.

Legal Analysis

There have been a number of Supreme Court cases addressing student's First Amendment speech rights. Two of these cases provide the greatest guidance for educators in addressing issues of student speech on the Internet. The earliest case is Tinker, supra, and the more recent case is Hazelwood School District v. Kuhlmeier, 484 US 260 (1988).

What is the Forum?

Traditional analysis of free speech issues starts with an analysis of the vehicle or "forum" through which the speech is being expressed. The Court in Hazelwood explained as follows:

"School facilities may be deemed to be public forums only if school authorities have 'by policy or practice' opened those facilities 'for indiscriminate use by the general public, or by some segment of the public, such as student organizations.' If the facilities have instead been reserved for other intended purposes, 'communication or otherwise,' then no public forum has been created, and school officials may impose reasonable restrictions of the speech of students, teachers, and other members of the school community. " Id. at 267 (citations omitted).

Since the district's Internet system has been established for an educational purpose, it should be considered a limited forum, similar to a school publication where the school has maintained editorial control. This conclusion is strengthened by the fact that every user of the district system will be identified by the district domain name that appears in their address and, therefore, all speech that originates from the district system, even private messages, will bear the imprimatur of the district.

However, districts that fail to clearly define the educational purpose of their Internet service and establish a practice of allowing their students to indiscriminately use the system in a manner similar to general public Internet access may find that they have established a public forum for their students. In such cases the ability of the district to govern student speech may be more limited.

Student speech that occurs on personal web sites clearly would be considered speech that occurs in a public forum.

Student Speech involving the District System

Hazelwood provides the greatest guidance for matters pertaining to student speech that is accomplished using district technology facilities. The issue involved in Hazelwood was a principal's decision to remove several articles from publication in the school newspaper.

The Court found that the school newspaper was not a public forum because the school did not intend to open the paper to indiscriminate use by the students. Id. at 270. Having found that the newspaper was not a public forum and the Court then sought to craft a standard for the application of the First Amendment in "school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonable perceive to bear the imprimatur of the school." Id. at 271. The standard expressed by the Court was:

"Educators are entitled to exercise greater control over [activities that may be characterized as part of the school curriculum] to assure that the participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speakers are not erroneously attributed to the school. Hence a school may * * * 'disassociate itself' * * * not only from speech that 'would substantially interfere with its work * * * or impinge upon the rights of other students but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences. A school must be able to set high standards for student speech that is disseminated under its auspices." Id . at 271-272 (citations omitted).

The educationally-based restrictions that would appear to be appropriate for a district to impose include:

  • Criminal speech and speech in the course of committing a crime.
    Threats to the president; instructions on breaking into computer systems; child pornography; drug dealing; purchase of alcohol; gang activities; etc.

  • Speech that is inappropriate in an educational setting or violates district rules necessary to maintain a quality educational environment.
    Which includes:

    • Inappropriate language
      Obscene, profane, lewd, vulgar, rude, disrespectful, threatening, or inflammatory language; harassment; personal attacks, including prejudicial or discriminatory attacks; or false or defamatory material about a person or organization.

    • Dangerous information
      Information that if acted upon could cause damage or present a danger of disruption.

    • Violations of privacy
      Revealing personal information about others.

    • Abuse of resources
      Chain letters, "spamming", and appro-priate use of district group distribution lists.

    • Copyright infringement or plagiarism

    • Violations of personal safety
      Revealing personal contact information or engaging in communication that could place the student in personal danger.

    • Educationally- relevant restrictions
      The district may also require that student publications meet a variety of standards related to adequacy of research, spelling and grammar, and appropriateness of material (such as a restriction that student web pages must relate to school and career preparation activities).

It is also important to understand that public officials cannot limit speech based on viewpoint discrimination. Hazelwood did not address this issue directly, but the restriction against view-point discrimination is a long-standing First Amendment standard. One of the core functions of free speech is to invite dispute. For example in Terminiello V. City of Chicago, 337 U.S. 1, (1949) the Court states: "It may indeed serve its highest purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is of-ten provocative and challenging." (Id. at 4) There is no suggestion in Hazelwood that the Court was opening the door for school officials to exercise control of student speech based on their disagreement with the opinions being expressed. Indeed this has been the holding of several Circuit Court opinions interpreting Hazelwood, e.g. Searcy v Harris, 888 F2d 1314 (1989).

Student Speech on Personal Web Sites or Through Personal E-mail Systems

The Tinker case provides the legal standards that should be applied to incidents involving student speech that is not made using school technology facilities but does involve comments made about the school, teachers, or other students. In Tinker, school officials had disciplined students for wearing black arm bands to protest the war in Vietnam. The standard established in Tinker was:

"In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition can not be sustained. " Id. at 509

Subsequent court cases that addressed student underground publications, for example, Thomas v. Board of Education, 607 F.2d 1043, 1051 (2nd Cir. 1979), have applied the Tinker standard to such publications. There is limited difference between personal web sites and underground publications.

A very recent case addressed the issue of district's ability to discipline a student for material posted on the student's personal (non-school) web site Beussink v. Woodland R-IV School District (U.S. District Court, Eastern District of Missouri, Southeastern Division, 1998). In Beussink, a high school student posted material on a personal web page that was very critical of the administration of his school. In a preliminary injunction, the court indicated that if the speech had been sponsored by the school, the standard that would apply would have been that of Hazelwood. However, in the Beussink case the speech was not school sponsored and therefore the standards set forth in Tinker was the appropriate standard to apply. Applying the Tinker standard, the court concluded that "while speech may be limited based on a fear of disruption, that fear must be reasonable and not an undifferentiated fear of disturbance" and that dislike or being upset by the content of a student's speech is not an acceptable justification for limiting student speech."

Extracurricular Organizations

An analysis of student speech rights must include another area of potential concern -- the use of the district Internet system by student extracurricular organizations. Under the Equal Access Act, 20 U.S.C. § 4017, districts that allow extracurricular organizations may not discriminate on the basis of religious or political views in the creation of these organizations. This Act, which was enacted at the behest of conservative religious groups, is now providing the basis for the creation of a wide variety of student organizations reflecting a range of interests that may not have been anticipated by the Act's original champions.

The language of the Equal Access Act relates only to school meetings, but it is highly likely that student organizations will wish to use the district's Internet system to communicate with their members and others. If the district lets one organization, it will need to let them all. There are a number of benefits to this activity. The Internet will provide an effective way for organizations to communicate and maintaining a web page is a good teamwork based learning experience for the students.

On the other hand, the presence of student organization information on the district web site may create the perception of district sponsorship of controversial or religious activities. Such sites could also get out of hand by providing or pointing to material that could create a fair amount of controversy in the community.

Optional Approaches

There appear to be three options for a district in this situation:

  • Allow no web pages for extracurricular or-ganizations.

  • Establish viewpoint neutral standards for the web pages that may reduce the presence of controversial material (e.g. require that the material must relate specifically to organization activities and programs, only student-produced material may be posted)

  • No restrictions other than the district communication rules and school rules for the web site. The district will likely want to require that the extracurricular web pages include a statement of the district's neutrality on the views expressed.

Districts that provide few restrictions on student or extracurricular web pages should be prepared to support the free speech rights of its students if questions arise in the community. Controversy can be limited if the district has deliberated about this issue and is ready to respond to any questions that might arise with a clear statement of the value of free speech to a free society.

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