Student Speech Rights in the Age of Social Networking

BY DAVID L. HUDSON JR.

FIRST AMENDMENT CENTER

OutlineI. Development of Student Speech Jurisprudence

II. Supreme Court Precedent

III. On-Campus versus Off-Campus and Student Internet Cases

IV. A Few Examples

Public School Students – No Protection for Many YearsCourts initially gave school officials absolute authority over students. Teachers taught and students listened. Early student free-speech cases ended in resounding defeat for the students.

The Case of Earl Wooster Earl Wooster was a high school student at Fresno High in Fresno, California.

The principal called an assembly meeting to inquire about a recent student fight.

Wooster stood up and said: “if the school board was so interested in keeping the bones of the students from being broken, probably they’d put some fire exits on the assembly hall.”

Wooster (cont.) School officials were incensed at Wooster and the school board members voted to withhold his diploma.

Wooster and his father sued to get his diploma. The California Court of Appeals rejected Wooster’s claim, noting his “incendiary address” had the impact of “creating in the minds of students a spirit of insubordination and was subversive of good order.”

Wooster (cont.) Wooster later went to the school board and asked for his diploma. He got and attended the University of Nevada.

He began working as a teacher in Fallon, Nevada. He later became a principal and superintendent in Washoe County.

Earl Wooster High School

Jehovah Witness Kids in School Controversy over mandatory flag salute statutes – time of World War II, great national unity

Story of Gobitis and Barnette kids

A Remarkable Change After wave of violence perpetrated against Jehovah Witnesses, the U.S. Supreme Court took notice. Three justices (Black, Douglas and Murphy) publicly acknowledged that Gobitis was wrongly decided.

West Virginia v. Barnette (1943)“If there is any fixed star

in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

Importance of BarnetteFirst Amendment applies in public schools --- constitutional baseline

Creation of the compelled speech doctrine in FA law

Tinker v. Des Moines Independent Comm. Sch. Dist. (1969)

Several students wear black armbands to protest U.S. involvement in Vietnam War.

School officials learn of impending protest and pass no-armband rule.

Students still wear armbands to school and are suspended.

The Tinker standard

School officials can censor student

expression only if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

What is a “substantial disruption?”

Must be a “reasonable forecast” of disruption

“undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

What about language in Tinker of “Invades the Rights Invades the Rights Invades the Rights Invades the Rights of Others”

Never really explained by the court.

The 9th Circuit ruled that school officials could prohibit a student from wearing t-shirts with religious-based, anti-gay messages because it would invade the rights of gay and lesbian students.

Justice Black Dissents Justice Hugo Black, considered an ardent First Amendment absolutist, dissented in Tinker; influenced by student protests across the country.

He warned of a “new revolutionary era of permissiveness” that would be “fostered by the judiciary.”

Terrorist T-shirt

Bethel School Dist. No. 403 v. Fraser(1986)

“The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”

Fraser rule school officials can regulate student speech is vulgar, lewd or plainly offensive.

In a later case, Chief Justice John G. Roberts Jr. questioned the “plainly offensive” prong part of the Fraser rule.

Drugs Suck T-shirt

What about these bracelets?

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)

School principal censors two stories in school newspaper (produced as part of journalism class). One deals with teen pregancy; another deals with impact of divorce upon teens.

Students sue, relying on Tinker “substantial disruption” standard.

Hazelwood standard

“Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”

Trilogy Hazelwood standard – applies to school-sponsored speech

Fraser – applies to student speech that is vulgar and lewd.

Tinker – applies to most other student speech.

Bong Hits 4 Jesus Case

Morse v. Frederick (06-278) High school student in Alaska skips school and attends Olympic torch relay that runs on public street near school. He displays banner that reads “Bong Hits 4 Jesus.” School principal tears down banner and suspends student for 10 days (allegedly doubling suspension after he mentioned the First Amendment and Thomas Jefferson).

Bong Hits (cont.) The Court creates a “promoting drug speech exception” to the trilogy, writing that schools can “restrict student expression that they reasonably regard as promoting illegal drug use.”

Bong Hits (cont.) The Court did rule that Fraser “should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.”

Online Student Speech Arguably the most pressing issue in the First Amendment student-speech world concerns students who post offensive material on the Web (My Space or elsewhere) – in many cases off-campus - and then are punished for that expression.

online student speech (cont.)

How far does school official authority extend?

What type of connection or nexus must school officials show before exercising their authority?

Offline Case AnalogiesStory of Jeffrey Fenton (calls teacher a “prick” one Sunday in a car near a shopping mall; student is suspended …)

“to countenance such student conduct even in a public place without imposing sanctions could lead to devastating consequences in the schools.”

The vulgar gesture case of Jason Klein •Contrast with story of Jason Klein – sees teacher he doesn’t like at restaurant three blocks from campus – gives teacher the middle finger ---

•“The conduct in question occurred in a restaurant parking lot, far removed from any school premises or facilities at a time when teacher Clark was not associated in any way with his duties as a teacher.”

How Far Does School Authority Reach?

Can school officials punish students for online material created off-campus?

◦ Most courts ask whether the student speech created a substantial disruption at school. (the Tinker test).

◦ A few courts ask whether the material is vulgar, lewd or plainly offensive (the Fraser test)

◦ One court has implied that it is simply beyond the jurisdiction of the school to get involved in an off-campus matter.

Case Examples Beussink v. Woodland R-IV School District (1998) –

A student creates a webpage at home that mocks the school and its principal. The principal learns about it from another student and suspends Beussink for 10 days because he finds the site offensive.

Beussink (cont.) The Court rules in favor of Beussink after applying Tinker: “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker.”

J.S. v. Bethlehem Area School District (Pa. 2002)•Student creates site devoted to speech critical of teacher and principal. Even writes that he would pay money to a hitman to knock off the teacher ---

•“We hold that where speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed by school by its originator, the speech will be considered on-campus speech.”

Layshock v. Hermitage School District(2006 – present)Justin Layshock creates content on his My Space profile that mocks his school principal and makes fun of several teachers. The controversy over the site caused the school to close down the computer lab for a few days.

Layshock (cont.)A federal district court, in denying Justin temporary relief, ruled that the school had presented enough evidence of disruption (shutting down the computer lab).

The ACLU’s position: “The danger in the opinion is that a school could overreact to speech and then point to that overreaction as the justification for censorship. ..” “School officials shouldn’t be able to take advantage of their overreaction to student speech.”

Layshock (cont.)•On appeal, the 3rd Circuit ruled for the student ---

•“It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child's home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities.”

Contrast with case of Kara KowalskiKowalski created a MySpace page called S.A.S.H. – Students Against Sluts Herpes

The page ridiculed a classmate. The classmate and her parents went to school and filed a harassment complaint. School administrators determined that Kowalski had created a “hate website” and had engaged in bullying.

School officials ultimately imposed a five-day suspension and 90-day social suspension from school activities.

Kowalski (cont.) Kowalski argued that school officials had no authority to punish her for purely off-campus conduct.

Court rules in favor of school.

◦ “schools have a duty to protect their students from harassment and bullying.”

◦ Kowalski knew her online speech “could reasonably be expected to reach the school or impact the school environment.”