Public School Regulation of Student Speech on the Internet

Overview of the US Case Law

                School districts across the nation are grappling with difficult decisions regarding their ability to regulate or discipline cyber expression by students. While there are well-established guidelines for regulating student speech, lower courts are struggling to apply pre-Internet legal standards to student speech on the Internet.

            The U.S. Supreme Court has not ruled regarding the limits of regulating student cyber expression. However, several Supreme Court cases set the general guidelines for regulating student speech. While none of these cases involved the Internet, the principles set forth in them still guide the analysis regarding all student speech, including cyber speech. The standards established by these cases are as listed below:

•          As a general rule, public schools can punish student speech only when it causes, or is reasonably anticipated to cause, a material and substantial disruption of the school environment or if it interferes with the rights of others.[1] This general rule is subject to the following exceptions:

o   A school can punish lewd, vulgar, or offensive student speech.[2]

o   A school may regulate speech for legitimate pedagogical concerns where the speech is school-sponsored or others might reasonably believe that the speech bears the school’s imprimatur – such as a student newspaper.[3]

o   Where speech occurs off-campus, but at a school sponsored event, a school can restrict student speech at a school event when it is reasonably viewed as promoting illegal drug use.[4]

With no precedential guidance regarding disciplining cyber expression from the Supreme Court, the lower state and federal courts have been issuing conflicting decisions regarding the issue. In February 2010, two panels of the 3rd U.S. Circuit Court of Appeals delivered contradictory decisions on the very same day. Both cases appeared to involve substantially similar facts and identical issues. The students created the profiles off-campus, using non-school computers, during non-school hours; however, the courts reached opposite conclusions.

            In Layshock v. Hermitage, the court found that school officials could not suspend a student for creating a derogatory fake Internet profile of his principal. The court reasoned that even though the student and several fellow classmates accessed the internet posting from school computers during school hours, there was an insufficient nexus between the off campus speech and any alleged disruption of the school environment.[5]

            In J.S. v. Blue Mountain, the court upheld a 10-day suspension of a student who posted a profile on MySpace that showed a photo of the principal and described him as a pedophile and sex addict. In contrast to Layshock, the court held that the likelihood of such an act significantly disrupting school activities warranted the school’s disciplinary actions.[6]

            In accordance with Blue Mountain, the 2nd Circuit applied the Tinker standard to off-campus speech concluding that school officials could regulate off-campus Internet speech where it was reasonably foreseeable that the acts could substantially disrupt the school environment.[7]

The uncertainty of the courts and these conflicting rulings have left school officials guessing about where the lines have been drawn. Unfortunately, there is currently a legal grey area regarding the regulation of cyber expression. Because of this lack of clarity, educators must turn to the standards identified by the courts in analyzing these situations. However, as highlighted by the inconsistent 3rd Circuit rulings, the factual analysis in determining whether or not an activity materially or substantially interfered with the school’s operations is highly subjective and unpredictable.

            While the law is still evolving, there are general guidelines that schools can follow. As a general rule, if the speech was created and distributed using school equipment, during school hours and/or on campus, schools may discipline students for inappropriate expression subject to the Tinker standard. The guidelines set out in Tinker are that public schools can punish student speech only when it causes, or is reasonably anticipated to cause, a material and substantial disruption of the school environment or if it interferes with the rights of others. On the other hand, if the activity occurred using the student’s own computer or mobile device, outside of school hours, and off campus, schools have very limited authority to regulate or discipline that activity, because such expression is generally constitutionally and statutorily protected. However, such speech may be subject to discipline under existing legislation if it is deemed harassment or poses a true threat.

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[1] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969).

[2] Bethel Sch. Dist. No. 403 v. Fraser, 479 U.S. 675, 678 (1986).

[3] Hazelwood Sch. Dist. V. Kuhlmeier, 484 U.S. 260, 271-273 (1988).

[4] Morse v. Frederick, 551 U.S. 393 (2007).

[5] Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (3d Cir. 2010).

[6] J.S. v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010).

[7] Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008); Wisnewski v. Bd. of Educ., 494 F.3d 34 (2d Cir. 2007).