Balancing Free Expression

Since the Internet is viewed as merely another transport medium for written speech, and assuming the student hasn't libeled, threatened, advocated, effected or propagated criminal activity or materially disrupted the educational environment, what's left that might restrict a student's right to free expression?

Attending a private school could dramatically limit that right. Government funding requires adherence to constitutional principles, but privately-funded education has no such requirement; although a private school may willingly follow those principles, it's a matter of discretion, not law. Where such an institution has adopted a policy of free expression and formalized it in writing, there may be a contractual obligation. State law may also have an effect. But in general, the first-amendment protections available to students in public education don't apply to students attending private schools, so the discussion specifically addresses the former. More information on this subject can be found in the Student Press Law Center’s packet Press Freedom at Private Schools.

It may also be worthwhile to note, in passing, the difference between publication and broadcast. Because the Supreme Court has equated online media with traditional print, this discussion also doesn't apply to student-run radio stations. Where a podcast might fall in the scheme of things is debatable, although reason and logic would suggest a greater similarity to broadcast, program-selection issues aside. In any case, broadcasters enjoy far less protection under the law than do publishers of print or online media.

Probably the most important distinction affecting students' free-speech rights has to do with whether or not they're involved in a school-sponsored publishing activity, and if so, whether that activity has been designated a public forum. Part one of the SPLC's Student Media Guide to Internet Law defines the term.

A publication, online or otherwise, is a public forum when students are given, with limited exceptions, the right to control content. If the school has established a "policy or practice" of allowing free expression by allowing student editors to control the content of the online edition, the forum is open and students continue to have editorial control.

Alternatively, if an online edition has not yet been established, the answer will depend on whether the school allows the publication to be designated as a public forum.

In the absence of any clear school policy, the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier can be of value in—among other things—determining how the publication in question should be classified.

The Hazelwood Court listed several factors for determining the status of a publication forum where there is no clear school policy that could be analogized to the online context. Examples are (1) whether the networks are provided and paid for by the school, (2) whether the online activity is part of a class assignment where students receive academic credit for their work, and (3) whether the administration has reserved the right to choose the students’ article topics or otherwise regulate the content of the Web site. If the answer to all of these questions is "yes," your school can probably argue that your online paper is a closed forum, thus reserving significant editorial control.

Many schools and districts have adopted acceptable-use policies—and policies specifically aimed at Internet use—concerning their networks. The overall content of such policies is still governed by law, but the language may be instructive; words like privilege and right usually lie at opposite ends of the censorship spectrum.

An Acceptable Use Policy (AUP) or Internet Use Policy, often found in a student handbook or in district guidelines, sets out the rules and regulations governing student (and sometimes faculty) use of school computer networks. Looking at such a policy might help you to determine whether the network has been designated a public forum. If the policy language is cautionary, referring to access as a "privilege," and includes stringent restrictions regarding the type of communication permitted, the facilities will more likely be viewed as a non-public forum where the school has reserved the right to control the content. If the policy refers to student access as a "right," on the other hand, or if students have been permitted reasonably free access to the system, schools will have a more difficult time justifying acts of censorship.

Although the greatest control over student speech can be legally exercised when the publication is school-sponsored, operates using school-provided materials and resources, and is executed on school property, the school's authority isn't without limit. While in school, the rights of the student are reduced, but certainly not eliminated. The SPLC CyberGuide refers to the landmark 1969 Tinker v. Des Moines Independent Community School District case, which acknowledged the school's need to maintain order, but also affirmed the student's right to freedom of expression.

The U.S. Supreme Court, recognizing that students have the right to express controversial political ideas, said in 1969 that students do not "shed their constitutional right to freedom of speech or expression at the schoolhouse gate." The Court made that statement in the landmark case Tinker v. Des Moines Independent Community School District -- a case that upheld public school students' First Amendment rights to wear black armbands at school in symbolic protest of the Vietnam War. "School officials do not possess absolute authority over their students," the Court wrote. "Students in school as well as out of school are 'persons' under the Constitution." Thus, the First Amendment's protection of free speech does not stop simply because students are in a classroom instead of on a public street.

. . . [T]he Court in Tinker implied that due to the schools' interest in maintaining order on campus, the First Amendment rights of public school children are slightly diminished while at school. Accordingly, the Court held that free-speech rights can be limited only when the speech in question "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."

If there's any remaining confusion regarding the free-expression rights of students and the circumstances that limit those rights, the Hazelwood case may fill in some of the gaps.

[In 1988] . . . the Court decided Hazelwood v. Kuhlmeier, its first case specifically addressing the rights of high school student media. At the center of the case was the decision of a school principal to censor several student-written articles scheduled for print in the school newspaper. The Court distinguished the school-sponsored newspaper in Hazelwood from the armband in Tinker, pointing out that the Tinker standard applies only to non-school-sponsored activities and that the school newspaper was a school-sponsored activity.

In Hazelwood, the Court held that school officials have the right to censor school-sponsored publications as long as the censorship is "reasonably related to legitimate pedagogical concerns." At the same time, however, it explicitly declined to overrule or limit Tinker's implied protections for non-school-sponsored publications. The Court noted that the Hazelwood decision applies only to "school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school" -- a group that pointedly would not include independent online speech.

If school-sponsored activities and projects are subject to only limited control and censorship and students' free-speech rights are only slightly diminished while at school, it seems all the more unreasonable—and legally pointless—when administrators attempt to reach outside the schools and into the homes of students, as the USA Today article I mentioned on Tuesday implied. Really, there's a bit more to the independent online speech story, but it's going to have to wait for tomorrow.