Student online speech & the boundaries of the schoolhouse gate

Tuesday, March 31, 2009

This article is part of an online symposium on the First Amendment Center Online titled Cyberbullying & Public Schools.

For an unfortunate number of today’s totally wired youth, electronic communications have become the new vehicle used to ridicule, harass and denigrate others. Cyberbullying, the use of electronic communication technologies to intentionally engage in repeated or widely disseminated acts of cruelty towards another that results in emotional harm, is an emerging concern. Among youth, electronic communications are a primary form of peer-to-peer communications. All forms of aggression — insults, minor fights, relationship break-ups, bullying, and the like — are now being accomplished electronically.

The majority of the most harmful incidents of cyberbullying involve online harmful actions taken at home — because this is where students have greater unsupervised time. But these online postings are or could significantly impact school or the well-being of students at school — because school is where the students are physically together. Students may also post material online that raises concerns about the threat of violence.

At other times students post materials that target school staff. Sometimes this speech raises concerns that the student posting the material is emotionally distraught and angry about his or her school experience. Other times, students may be using these technologies to protest school policies or the actions of school staff.

This new phenomenon raises concerns for school officials regarding the extent of their legal authority to impose formal discipline. Unfortunately, the boundaries remain unclear. The question of legal authority necessarily involves addressing the balance between student free-speech rights and the important responsibility of school officials to protect the rights of other students to receive an education and be safe at school.

School personnel and policymakers have recognized that the consequences of bullying can be significant. Both bullies and victims are at high risk of suffering from serious health, safety, and educational risks. (See Olweus, D. (1993), Bullying at school: What we know and what we can do. Cambridge, Mass.: Blackwell Publishers, Inc.; Williams, K., Chambers, M., Logan, S., & Robinson, D. (1996), “Association of common health symptoms with bullying in primary school children,” British Medical Journal, 313, 17–19; Batsche, G., & Knoff, H. (1994), “Bullies and their victims: Understanding a pervasive problem in the schools,” School Psychology Review, 23(2), 165–174; Riittakerttu, K., Rimpela, M., Marttunen, M., Rimpela, A., & Rantanen, P. (1999), “Bullying, depression and suicidal ideation in Finnish adolescents: School survey,” British Medical Journal, 319, 340-51; Kim, Y.S & Leventhal, B. (June 2008), “Bullying and suicide. A review,” International Journal of Adolescent Medicine and Health, Vol. 20, No. 2 April 133-154.)

Bullying behavior also seriously damages the school climate and is associated with school violence. Research on cyberbullying demonstrates that the youth concerned report a high degree of involvement in offline relational aggression, physical aggression, and sexual aggression. (See  “Youth Violence and Electronic Media: Similar Behaviors, Different Venues?” Journal of Adolescent Health, December 2007 Supplement.)

The recent Supreme Court decision in Morse v. Frederick (2007) was grounded in the importance of ensuring school officials can address student safety concerns. There is extensive and incontrovertible evidence that the prevention of bullying behavior, including off-campus cyberbullying, is an exceptionally compelling school safety concern. Given that the Morse Court considered the prevention of student drug use an important concern, how would it rate the importance of preventing school failure, school violence, and youth suicide?

Philosophies that underlie the First Amendment
According to what the First Amendment historian Leonard Levy has set out in his book, The Emergence of a Free Press, ((1985), p. 220-282,) it is generally accepted that the framers of the First Amendment were thinking generally in terms of English common law when the amendment was adopted. William Blackstone’s explanation stated: “[W]here blasphemous, immoral, treasonable, schismatical, seditious or scandalous libels are punished by the English law … the liberty of the press, properly understood, is by no means infringed or violated. (Blackstone, Commentaries on the Laws of England, 151-52 (1783) (reprint ed. 1978).) Even so, Levy noted there is an alternative perspective, the natural-rights philosophy, which is expressed in the 18th-century passage:

Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; Which is the Right of every Man, as far as by it does not hurt and controul the Right of another; and this is the only Check which it ought to suffer, the only Bounds which it ought to know. (“Of Freedom of Speech”, No. 15, Feb. 4, 1720, in John Trenchard and Thomas Gordon, I Cato’s Letters: Essays on Liberty, Civil and Religious, 96 (reprint ed. 1971).)

The essential difference between these two philosophies is this: Under English common law government has the authority to restrict speech contrary to the public good, whereas under the natural-rights theory the role of government is to restrict the speech of one if it could harm another.

While neither the Supreme Court nor lower federal courts have referenced the historical basis in cases addressing school authority over student speech, it appears that the courts have created standards that are grounded in both of these philosophies.

In Tinker v. Des Moines Independent Community School Dist. (1969) , the Court ruled that schools can impose discipline if speech causes or threatens substantial disruption or interference with the rights of students to be secure. This decision appears to be largely grounded in the natural-rights philosophy.

But in Bethel School Dist. No. 403 v. Fraser (1986), the Court ruled that schools can impose discipline for student speech that is “lewd,” “vulgar,” “indecent,” “plainly offensive” or “inconsistent with its basic educational mission.” The Court stressed that the school “must inculcate the habits and manners of civility.” This decision appears to be grounded in the English common-law “public good” philosophy. In a concurring opinion, Justice William Brennan noted that “if respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate.”

Lower courts considering situations involving school discipline for off-campus student speech, have universally rejected the application of the Fraser standard in such situations — and instead have reviewed the incidents under the Tinker guidelines.

The essential distinction appears to be this: When students are on campus, school officials have the authority to impose reasonable restrictions on speech grounded in their authority to inculcate values of a civilized society, as well as restrict speech that has or could interfere with the rights of other students — public good and natural rights.

However, when students speak off campus, school officials do not have the authority to impose restrictions grounded in the desire to inculcate civilized values. When students are off campus, this is a parent’s responsibility. But school officials retain a compelling interest and responsibility to protect the well-being of the children entrusted to their care — natural rights, but not public good.

Responding to student off-campus speech
An analysis of cases related to off-campus online speech, most notably Layshock v. Hermitage School Dist., as well as the now-Justice Samuel Alito’s extensive opinion in Saxe v. State College Area School Dist., provides a helpful framework. To support an official school response that effectively balances free-speech protections and school safety there should be:

  • School “nexus.” A nexus between the off-campus online speech and the school community. That is, the speech involves students or staff or is in some other manner connected to the school.
  • Impact at school. The impact has been, or is reasonably foreseeable will be, at school. “School” includes on-campus activities, as well as school-sponsored field trips, extracurricular activities, sporting events, and transit to and from school or activities.
  • Reasonably foreseeable. A particular reason why a school official anticipates a substantial disruption. Timing is an issue. A formal response is for the purpose of preventing an imminent foreseeable substantial disruption.
  • Material and substantial impact. The impact has been, or is reasonably foreseeable will be, significant — material and substantial. Not anger or annoyance. Not disapproval of the expression of a controversial opinion or nasty language. Not simply a situation that requires a school official’s attention.
  • Disruption of school or interference with rights of students. The speech has caused, or is reasonably foreseeable will cause, (1) significant interference with instructional activities, school activities or school operations, or (2) physical or verbal violent altercations, or (3) a hostile environment for any student that impairs that student’s ability to participate in educational programs or school activities.
  • Hostile environment. Determined based on the target’s subjective response, as well as a reasonable-observer perspective.
  • Causal relationship. The speech has been, or is reasonably foreseeable will be, the actual cause of the disruption. Not some other factor, such as administrator reaction.

Potential threat
School officials have the authority, as well as a responsibility, to respond to online material that raises a concern that a student may pose a threat to herself or others. A true threat is a statement that, considered as a whole, would cause a reasonable person to regard the statement as showing an immediate, unequivocal attempt to cause harm. True threats are not protected speech under the First Amendment (See Lovell v. Poway Unified School Dist., (1996)).

There are concerns about the current manner in which student threats are being addressed in the courts (See Sarah E. Redfield, “Threats Made, Threats Posed: School and Judicial Analysis in Need of Redirection,” 2003, BYU Education and Law Journal, 663). The true-threat standard that has been enunciated by the Supreme Court in Virginia v. Black (2003) is excessively vague. Due to immature brain development in the frontal lobe, teens are biologically incapable of applying the “reasonable person” standard to their own actions — especially if they are emotionally upset.

Further, the legal standard is not in accord with guidance provided to schools by the Secret Service and Office of Safe and Drug Free Schools on effective threat assessment. The critical issue that school officials must consider is not whether a student “made” or “posted” a threat — but whether the student “poses” a threat.

Off-campus speech targeting school staff or policy
Off-campus speech that targets school staff or challenges school policy likely will not meet the substantial-disruption standard, unless the speech has or could cause a significant interference with the delivery of instruction, school activities or operations.

While not addressed in any decision, the right of students to protest actions of school staff or challenge school policy is grounded in another consideration: the First Amendment right to petition. The right of citizens to petition government officials to correct a policy or right a wrong is fundamental to a democratic society.

Some students are using the Internet to communicate their displeasure of school policies or the actions of school staff — a right that clearly deserves strong support. Nonetheless, in Doninger v. Niehoff (2008), the 2nd U.S. Circuit Court of Appeals appeared to have difficulties understanding the importance of this fundamental democratic right. The situation of students posting material that targets staff must also be considered from another perspective. Some reported incidents raise concerns that the student who posted material is the recipient of abuse by the staff member targeted. The concern of school staff bullying students is real, but has received very little research or policy attention.

Restorative-justice perspective
Figuring out the intricacies of legal standards can be challenging for school officials. But the legal questions may end up being the least important issue. School officials should never place their primary focus on the question of whether they can or cannot impose formal discipline. For some of these incidents it is important to send a firm message that certain behavior will not be tolerated. But more importantly, it is also necessary to support all students in resolving the dispute. Officials must ensure the removal of hurtful material, prevent retaliation and address the support needs of both the target and perpetrator. A focus on restorative justice is highly advised.

Nancy Willard, M.S., J.D. is the director of the Center for Safe and Responsible Internet Use. She has degrees in special education and law. She taught “at risk” children, practiced computer law, and was an educational technology consultant before focusing her professional attention on issues of youth risk online and effective management of student Internet use. She is also the author of Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social Aggression, Threats, and Distress (Research Press, 2007) and Cyber-Safe Kids, Cyber-Savvy Teens, Helping Young People Use the Internet Safety and Responsibly (Jossey Bass, 2007). Her focus is on applying research insight into youth risk and effective research-based risk prevention approaches to these new concerns of youth risk online.

© 2009 Nancy Willard. Permission to reproduce for nonprofit purposes. E-mail