F.  Courts Continue To Grapple

With Student Internet Speech 

 

      A First Amendment fantasy come true, the Internet is, in the words of federal Judge Stewart Dalzell, the “most participatory form of mass speech yet developed.”  It turns virtually any person, including a minor, into a pamphleteer.  Public school students have increasingly turned to the Internet to communicate a variety of messages — some of them not so kind to school administrators.  Federal and state courts addressed at least three such instances in 2002.

 

Background 

      Tension has developed when school administrators punish students for the content of Web communications created off campus in the confines of students’ own homes.  School administrators argue that students can be punished for off-campus Internet speech for a variety of reasons: because the speech constitutes a true threat; contains vulgar and offensive language; creates disruption at school; or because other students access the Web site at school. 

      Students counter that school officials do not have jurisdiction to punish students for off-campus conduct.  They contend the matter is for parental, not school, discipline.  Students also frequently argue that school officials overreact when they read Web sites with unflattering portrayals of school policies and/or school officials.

      The lower courts have not been consistent in the standards they apply to these situations.  See generally David L. Hudson, Jr., “Censorship of student Internet speech: The effect of diminishing student rights, fear of the Internet and Columbine,” 2000 L. Rev. M.S.U.-D.C.L. 199.  Recent cases confirm that the lower courts still have failed to reach agreement on how to analyze student Internet cases.  

 

J.S. v. Bethlehem Area School District  

      A decision by the Pennsylvania Supreme Court appears to be the most favorable for school administrators.  J.S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002).  The case involves a Web site created by an eighth-grader 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 Adolph Hitler and making fun of her appearance.  The site even contained a phrase saying “give me $20 to help pay for the hitman.” 

      School officials expelled the student, citing the extreme emotional distress suffered by the math teacher and the disruption the Web site apparently caused at the school.  The student argued in a lawsuit that his Web page was a form of protected speech.

      The first issue, according to the Pennsylvania Supreme Court, was whether the student’s speech constituted a true threat.  Under the First Amendment, true threats are not protected speech.  Watts v. United States, 394 U.S. 705 (1969).  The state high court determined that the Web site, though in extremely poor taste, was not a true threat: “We believe that the Web site, taken as a whole, was a sophomoric, crude, highly offensive and perhaps misguided attempt at humor or parody.  However, it did not reflect a serious expression of intent to inflict harm.”

      The state high court then addressed whether the school had jurisdiction under First Amendment jurisprudence for student speech.  It dismissed the argument that the Web page created at the student’s control was off-campus speech beyond the school’s jurisdiction.  “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 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 said.  This determination put the Pennsylvania court at odds with at least one federal court, which held that student Internet speech created off-campus is “entirely outside of the school’s supervision or control.”  Emmett v. Kent School District No. 415, 92 F. Supp. 2d 1089 (W.D. Wash. 2000).  

      The Pennsylvania high court then reasoned that school officials could punish the student under one of two U.S. Supreme Court decisions: Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), or Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).  In Tinker, the Court determined that school officials could not censor student speech unless they could reasonably forecast that the speech would create a material interference or substantial disruption of school activities or invade the rights of others.  In Fraser, the Court ruled that school officials could punish a student for giving a lewd speech before a student assembly.  The Court determined that school officials could appropriately punish student speech that is plainly offensive and vulgar. 

      According to the Pennsylvania Supreme Court, the school district could punish the student under the Fraser standard because the speech on the Web site was clearly vulgar and highly offensive.  It could punish the student under the Tinker standard because the Web site caused a substantial disruption of school activities.

 

Coy v. Board of Education of the North Canton City Schools

      A federal district court in Ohio reached a different conclusion in another student Internet speech case.  In this instance, school officials suspended and then expelled Jon Coy for his Web site.  Coy v. Board of Education of the North Canton City Schools, 2002 U.S. Dist. LEXIS 7713 (N.D. Ohio April 29, 2002). 

      The site, which the boy created at home, contained a section entitled “losers.”  This section contained a picture of one student with a caption saying his mother had sexually molested him.  The site also contained some profanity.  School officials punished the student after determining that he had accessed his Web site in the school’s computer lab.  They claimed that they had the right, under the Fraser decision, to punish the student for his vulgar and lewd speech.  He countered that the speech was off-campus speech over which the school had no jurisdiction. 

      Attorneys for the school and the student both filed motions for summary judgment.  The court determined that there were sufficient factual disputes preventing summary adjudication.  The court ruled that the question was whether school officials punished the student for the content of his Web site or for accessing the Web site at school in violation of the school district’s Internet policy. 

      The judge also determined that even if the school can present evidence that it disciplined the boy for accessing his Web site at school, the district must still meet the Tinker standard.  In other words, the school district must still show that Jon Coy’s accessing of his Web site on school grounds likely would cause a substantial disruption of school activities.

 

Mahaffey v. Aldrich  

      Still another federal district court addressed a similar student Internet speech issue in Mahaffey v. Aldrich, 236 F. Supp. 2d 779 (E.D. Mich. 2002).  In this case, student Joshua Mahaffey was suspended for co-creating a Web site entitled “Satan’s web page.”  The site contained a list of “people I wish would die,” “music I hate,” and “movies that rock.”  The site also contained a paragraph entitled “Satan’s Mission For You This.”     

      School officials learned of the Web site from the local police who were contacted by the parent of another student.  When the Mahaffey boy admitted to school officials that he helped create the site, they suspended him.  Then, school officials brought expulsion proceedings against the boy, who said he created the site “for laughs.”

      Applying the Tinker standard, a federal district court sided with the Mahaffey boy on his First Amendment claim because “there is no evidence that the website interfered with the work of the school or that any other student’s rights were impinged.”  The court concluded: “Defendant’s regulation of Plaintiff’s speech on the website without any proof of disruption to the school or on campus activity in the creation of the website was a violation of Plaintiff’s First Amendment rights.”

      The court also rejected any notion that the Mahaffey Web site was a true threat.  The court cited a disclaimer on the site that said: “PS: Now That You’ve read my Web page please don’t go killing people and stuff then blaming it on me.  OK?”

 

Lawsuits Continue Apace

      Other lawsuits have been filed over school officials punishing students for their online speech.  For instance, in Muss v. Beaverton School District, No. 6-02-01706-AA (D. Or. filed Dec. 17, 2002), eighth-grader Carlton Muss claimed that school officials violated his First Amendment rights when they expelled him for his Web site that made fun of various students and teachers.  According to the plaintiff’s complaint, the student “created the site using personal property on personal time, entirely away from District property, and entirely outside of School hours.”

      How this and similar cases will be resolved remains to be seen.  As the Pennsylvania Supreme Court acknowledged: “Unfortunately, the United States Supreme Court has not revisited this area [students’ First Amendment rights] for fifteen years.  Thus, the breadth and contour of these cases and their application to differing circumstances continues to evolve.  Moreover, the advent of the Internet has complicated analysis of restrictions on speech.”  Perhaps this issue will divide the lower courts enough to merit U.S. Supreme Court review.

 

--David L. Hudson, Jr.