The Limits of Digital-Era Free Speech in Schools

By Staff | August 12, 2011

The Internet is now as public as Hyde Park’s infamous Speakers’ Corner

A number of recent First Amendment cases surrounding school children have highlighted the nuances of free expression and the difficulties faced by school administrators and judges in policing online and off-campus speech.

The cases: an off-campus blog, an offensive MySpace parody page, and uploaded pictures of a sexual nature have each raised the question of how far schools have the authority to punish out-of-school speech.

In the case of offensive comments made about school officials on a private blog, the judge ruled that schools have the authority to punish “lewd and vulgar speech” about the school or its officials, even in the speech occurs off campus. So far so good.

But what about a fake MySpace profile of a school principle?

A federal court has ruled that two teenagers in Pennsylvania cannot be disciplined at school for MySpace parodies of their principals created from off-campus computers. Today’s court decision states that you cannot punish students for off-campus speech simply because it offends or criticizes [school officials],” said Witold Walczak, legal director of the ACLU of Pennsylvania, which represented both students.

Is this any different from the case of the blogger? Perhaps not.

The U.S. Supreme Court ruled that students can be disciplined for activities that happen outside of school, as long as the school can prove the activities were “public”, that they concerned the school, and that they threatened to cause disruption once they made their way onto campus – the key point here being foreseeable disruption.

The line drawn between the above two cases is that however lewd and offensive the postings on MySpace were, it was unclear how much disorder would actually result. It’s a subtle distinction, but it’s important.

The lesson to be learned from this pair of cases is that when you write something on the internet, whether it’s in a personal blog or on a social media site, you are effectively publishing those words to a public audience – and one that is wider than you might have imagined. Online outbursts, be it by school children or company employees are increasingly frequently being treated as publications or public statements, not as private expressions, such as those made over the phone or over personal email.

To illustrate this point, let’s look at another recent case. Here, because the offending expression was private and did not concern the school, a student’s First Amendment rights were upheld.

A federal judge ruled that an Indiana school district violated the First Amendment rights of two teenage girls who were punished for posting sexually suggestive photos on MySpace during their summer vacation.

The lawsuit filed by the ACLU of Indiana in October 2009 claimed the district improperly banned the girls, who were sophomores at the time, from extracurricular activities for expression that didn’t involve the school, then humiliated the girls by requiring them to apologize to an all-male coaches’ board and undergo counseling after the photographs were circulated at school.

The school’s argument that the pictures were “obscene,” and therefore did not qualify for First Amendment protection, was overruled on the grounds that they did not come close to the obscenity laws in Indiana, they were taken outside of school, did not regard the school, were never intended for public dissemination, and therefore could not have provoked foreseeable disruption.

In this case, the private nature of the speech that did not target the school meant that it was also beyond the authority of the school to police.

In our digitized society, where so much social interaction and expression is now conducted online, we need to remember that what we say and do is not private. The age old adage, “think before you speak” is now “think before you type.”