The School as ISP, Four-letter Words, and Content Filtering

Orbiting the periphery of last week's discussion of students' free speech are a few ancillary issues that may be worth noting. The first contains a bit of irony. As it happens, the more a school involves itself in online student media, the greater the possibility of liability for undesirable content. This odd circumstance is due to Section 230 of the federal Communications Decency Act, which draws a line between content as it arrives on a public system versus the same content after editing or similar alteration after it arrives. For example, libelous comments posted on a school-sponsored site don't automatically create liability for the school, but editing or otherwise manipulating those comments may subject the school to legal responsibility. While it seems this scenario has yet to be tested in the courts—at least in the context of a public-school system—the underlying logic of playing a part in the creation of the material could be easily extended to school-sponsored media. In effect, the school is acting as an Internet Service Provider. Part two of the Student Press Law Center's Student Media Guide to Internet Law describes the problem.

The Federal Communications Decency Act (CDA) grants immunity to ISPs in libel and privacy suits involving their subscribers. Recent cases interpreting the CDA have found that even where ISPs do examine and discover defamatory content, they retain their immunity and are under no obligation to remove or retract such statements. Unless there are compelling facts proving otherwise, ISPs are to be regarded automatically as common carriers, just as a telephone company or library would be, and any knowledge they have concerning their subscribers' expression is irrelevant.

By contrast, a school that does exercise content control (rewording/rewriting articles, making affirmative decisions to publish, etc.) over student media could be legally responsible for what is published.

As I mentioned in a previous monologue, the same issues arise whether the material in question is posted on a Web site, a blog, or some other type of public forum—it doesn't have to be electronic—but I won't further belabor the subject here. I will, however, add one small point for the sake of historical curiosity, from the SPLC's Know Your Cybershield.

The CDA was also designed to regulate "obscene" and "indecent" material on the Internet by making it a crime to transmit such material to minors. Section 230 was to ensure that ISPs taking steps to to screen out "obscene and "indecent" material would not be treated as publishers for content created by others. The CDA's regulation of indecent material was held unconstitutional by the Supreme Court in Reno v. ACLU,521 U.S. 844 (1997), but Section 230 remains.

Another issue affecting the success or failure of students' free speech is the definition of obscenity, and also how it's applied in the context of minors in the public school system. Although the use of profanity, vulgarity, and generally tasteless and offensive speech is protected under first-amendment law, the presence of minors in the high-school setting may reduce this protection. And while the tendency toward unbridled use of expletives is obvious and may even be considered normal contemporary communication by some, the educational value of profanity is difficult to prove. The Supreme Court's obscenity test is divided into three elements—prurient interest, depiction or description of sexual conduct, and the lack of literary, artistic, political, or scientific value—but leaves open such variables as contemporary community standards, what constitutes a reasonable person, and the definitions used by individual states. From the SPLC CyberGuide:

The Supreme Court's test for obscenity involves three elements: (1) whether a reasonable person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient (lustful) interest, (2) whether the work depicts or describes in a patently offensive way sexual conduct specifically defined as obscene by the applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Mere offensive content, such as profane language or ideas, is not obscene under the Supreme Court standard.

When it comes to minors the standards are widened, although certain variables remain similarly undefined. What might be considered "patently offensive to prevailing standards in the adult community as a whole" is uncertain, and perhaps intentionally so.

However, a similar but slightly broader definition of obscenity has been applied to cases involving minors. In 1968, the Court in Ginsberg v. New York defined obscenity involving minors as any description or representation of nudity or sexual conduct that (1) predominantly appeals to the prurient, shameful, or morbid interest of minors, (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and (3) is utterly without redeeming social importance for minors. Thus, a high school online underground publication, especially if viewed on campus, could run into obscenity problems even if the same material would not be considered obscene outside of school or on a college campus.

While it doesn't directly affect their freedom of speech, students' access to information is a related—and no less historical—issue in the context of school censorship. Like public libraries, public schools have been the target of various censorship campaigns over the years, and not always from external groups. Sometimes—according to part one of the Student Media Guide to Internet Law—it comes from a board of education. This one occurred in 1982.

One possibility is that courts will view the Internet as an information resource similar to a library and look to past library censorship cases for guidance. In Board of Education v. Pico, a board of education ordered high school officials to remove books from the school library that the board deemed inappropriate, including books the board claimed were "anti-American, anti-Christian, anti-Semitic, and just plain filthy." In Pico, a plurality—but not a majority—of the Supreme Court held that the board had selected books for removal in a "narrowly partisan or political manner" and the board's action was therefore unconstitutional.

Citing Pico, a federal court in 1998 suggested in dicta that a public library's (not a school library) decision to block access to certain Web sites based on content alone could be viewed as the equivalent of removing particular books from the library shelves. Such content-oriented "removal," the court stated, would probably be unconstitutional.

In the spirit of the educational imperative and the relative youth of its readers, it wouldn't be reasonable to expect the shelves of a high-school library to contain everything available at a public library. And if the Internet is in the category of information resource, it would be equally unreasonable to expect the school to allow unfettered access, especially considering the Net's notorious reach into the darkest aspects of humanity.

However, the court also noted that while overt content-discrimination is not allowed by a public library, sites might be blocked by schools if the substance of the site is not suitable to education, for example, if the site is laden with "pervasive vulgarity." In what appears to be an extension of the Hazelwood analysis to the Internet context, the court in dicta suggested that school officials at the high school level may enjoy broad discretion in what they may block, as long as the rationale for doing is educationally sound and not based on the fact that they disagree with a particular message.

Obviously, the subject of constitutional freedoms is complex, and interpretation of the law far more so. But contrary to the tone of the article that launched this discussion in the first place, it isn't a simple matter for school officials to "reach into students' home computers." Despite the current climate of privacy concerns weighed against security in our schools, there remain a few fundamental rules that protect even our youngest citizens from the unreasonable efforts of certain misguided overseers.