Larry L Burriss. Adolescent Online Social Communication and Behavior: Relationship Formation on the Internet. Hershey, PA: Information Science Reference, 2010.
Some 2,300 years ago the philosopher Aristotle said, “The law is reason free from passion.” At the philosophical level Aristotle’s statement is certainly true: attorneys, and teachers, must deal with the law as it exists, not as they would like it to be.
But the law is not an abstraction found only in case law, statutes and administrative rules. At its most fundamental level the law deals with people, and that means the law must be responsive to both reason and passion. Although Aristotle’s statement about the law quoted above is well known, less well known, but certainly as relevant, is what he said earlier: “Whereas the law is passionless, passion must ever sway the heart of man.” That is why, for example, a person who commits a crime in the “heat of passion” is less culpable than one who carefully and meticulously plans and executes a crime.
Thus both the lawyer and the teacher or school administrator must ask such questions as: How should a particular law be applied? What are the trends in the law? How has the law changed? For our purposes the question becomes, What is the triple connection between the law, the adolescent and electronic social networking?
A Mythology of Freedom
The First Amendment to the United States Constitution states, “Congress shall make no law…abridging the freedom of speech, or of the press….” On the surface those words are clear and unambiguous. However, in actual application the U.S. Supreme Court has never taken those words literally. There are hundreds of laws and regulations that infringe on free speech and free press. Whether those laws should be in place is a question for ethicists. How to deal with those restrictions and limitations is a question for both attorneys and those who are directly affected by the law.
This then leads to the question, should a given law be applied differently to different groups? Again, we turn to the U.S. Supreme Court for an answer, and that answer is an ambiguous, “maybe yes, maybe no.” In general we can say that the application of a given law based on race, religion, gender and national origin is unconstitutional. But what about age? Here the law is just as clear, but the application is more difficult: of course we apply the law differently depending on the age of the person involved. In both criminal and tort law, courts generally follow what is known as the “Rule of Sevens” (Cardwell v. Bechtol, 1987): under the age of 7, a child is generally considered to have “no capacity”; between 7 and 14 there is a rebuttable presumption of no capacity; between 14 and 21, a rebuttable presumption of capacity; over 21, capacity. Thus an adolescent is considered to understand the consequences of what he or she is doing, although this capacity may be challenged by the opposing side.
Location is Everything
Although it is sometimes said the Internet (and by extension, a social network) is simultaneously both everywhere and nowhere, the fact is the Internet is accessed from a real (as opposed to a virtual) somewhere. There is an intersection of the virtual and real worlds. And it is at that intersection that the law is in a state of flux.
Ever since the invention of the telegraph (and perhaps, even before), the law has had difficulty keeping up with technology. In the late 1800s, movies sprang upon the public before states and cities imposed regulations and censorship boards (Vivian, 2008, p. 139). The development of broadcasting was impeded because there was no regulation (Vivian, 2008, pp. 151-152). Indeed, it was the broadcasters themselves who asked the federal government to impose regulations. And the Internet? Well, some people have compared the Internet to the wild, wild West where lawlessness and individualism run rampant (Dempsey, 2007, p. 75; Schwartz, 2008, p. 29).
Nevertheless there is a body of law dealing with adolescents and media. Here the central question is often, “Where did the child’s action take place?” In a curriculum-related activity? In an open school laboratory? At a school-related off-campus activity? At an off-campus location unrelated to any school activity?
All of these moving parts make for some interesting Boolean logic constructions and Venn diagrams. There is the “Law and the Adolescent” circle. The “First Amendment” circle. The “Internet” circle. The “social networking” circle. But isn’t social networking part of the Internet? Isn’t the First Amendment part of the law? Does Internet regulation include regulation of social networks? Does the First Amendment trump any attempts to regulate Internet behavior?
So Where are We?
Because of these questions, and a myriad of others, this chapter will proceed along three fronts: (1) Schools, adolescents and messages, (2) Schools, adolescents and the Internet, and (3) Case law involving adolescent social networking sites including FaceBook, YouTube and Second Life.
That is why it is important to have a chapter on law in a book dealing primarily with emotions, feelings and sentiments. What goes on inside the heads of adolescents is certainly important and worthy of exploration, but this exploration must be tempered by what happens in the external world as well. This is not to discount the psychological components of social network activities, but rather to stress the importance the “rules of the game” play in these virtual worlds.
Issues, Controversies, Problems
High school kids sure cause a lot of trouble! It would be a lot easier if they just did what they were told and let adults do their thinking for them. “Ah,” but the high schoolers say, “We’re adults and we want to be treated like adults. It’s our newspaper or yearbook or web page, and we should be able to run it the way we want.” And here’s what the school administration says: “The newspaper or web page is a function of the curriculum; it uses school money and personnel, and therefore should be controlled by the administration.” So then how do we bring these two divergent points of view together? Well, the guiding principles are what the courts say someone can and cannot do. Ours is a nation of laws, and if students violate the law, then they must pay the consequences. If they willfully violate the law in order to make a point, then they must be willing to suffer the consequences.
What have the courts said in recent years about what students can and cannot do in terms of free speech in the high school? What the courts have tried to do is balance the right of free speech against the requirement of the state to provide an education. Any speech, or other activity that is disruptive to the educational process is not allowed. At this point we need to recognize that in dealing with the law and court cases we can’t get involved in ethics and morality; statements such as “should” and “should not” are often irrelevant. The law is the law. We may disagree with the law; we may want the law changed; we may think the law is wrong. But the law is the law. And that is a fundamental principle of the American legal system. We have to start with what the law actually says, not with what we want the law to say; not with what the law ought to say; not with what the law should say. Unfortunately (at least for school administrators), the law is just not that clear-cut with respect to children:
The law of children has developed in a patchwork and inconsistent fashion. Decisionmakers including Congress, state legislatures, the Supreme Court, and state courts have created laws and decided cases without a comprehensive vision of what it means to be a child or how children think and behave. Particularly troublesome is the varying manner in which the question of psychological capacity has been addressed by decisionmakers, if at all.
Some areas of the law view children as “infants” who do not have the capacity to act….
Other areas of the law presume capacity in all instances or disregard the question of capacity altogether. (Cunningham, 2006)
In that light we need to examine, in general terms, what students can, or cannot express in the school setting. Notice I did not say “what students can ‘say’ in the school setting.” As we will see, the courts have said that there are varieties of speech, and oral speech is only one kind of expressive activity.
We also must consider what the courts have said about the relationships between the Internet, schools and students. This is an evolving area in the law, and the reader is cautioned that what is permissible today may not be permissible tomorrow. Numerous court cases are inexorably making their way through the court system, and it may still be several years before we can say with any assurance what the rules are.
We can say, with some assurance, that in terms of legal theory and practice, adolescents fall into something of a legal netherworld: as noted above, some of them are children and some are adults. Or rather, sometimes some of them are children and sometimes some of them are adults. In some cases, legal rulings are made on the basis of the “appropriateness” of various kinds of material and expressive activity. There are also question of the age of the sender and the age of the receiver.
So let’s begin by looking at how the law differentiates between ages. As discussed elsewhere in this book, the age at which a child becomes an adolescent varies from culture to culture, from child to child, and even within the child himself. The law, however, likes to deal in absolutes as much as possible, and judges like to lay down bright lines in determining the applicability of the law. In this regard a seminal court case involving age comes from Tennessee, (Cardwell v. Bechtol, 1987) and addressed the issue of whether or not a minor could consent to medical treatment. Here the court, as noted earlier in this chapter, has explicated the “Rule of Sevens”: If the child is under the age of seven, there is a presumption of “no capacity.” If the child is between the ages of seven and fourteen there is a rebuttable presumption of no capacity (the court will begin by assuming the child has no “capacity,” and it is then up to the opposing attorney to convince the court otherwise). Between the ages of fourteen and twenty-one there is a rebuttable presumption of capacity. At age twenty-one the child is presumed to have know and understand the results of their actions (i.e., have capacity) (Cardwell v. Bechtol, 1987, p. 745).
But notice the problem: most students enter high school at age 15, and therefore have a “rebuttable presumption of capacity” Most laws addressing student rights deal with high school students, but more and more laws and court cases address adolescents, who can be 13 or younger, and thus in junior high or middle school. At this age there is a “rebuttable presumption of no capacity.”
In preparing this chapter the author ran a series of simple searches on the legal database WestLaw® to see how many cases include education and freedom of expression terms. The results, while admittedly not quantitatively rigorous, nevertheless show where most of the controversy lies: of 214 cases in which the court has used the phrase “freedom of expression,” nearly one-quarter (23.4 percent) also include one of the school-related terms. Further, of the 50 cases using the phrase “freedom of expression” and one of the school terms, 66.0 percent used the term “high school,” 26.0 percent used the term “secondary school,” and 8 percent used the term “junior high school.” (Table 1)
Again, while this brief review may not stand up to rigorous quantitative analysis, it does show a substantial interest on the part of the court in educational and free speech issues, and that high school free speech issues predominate.
At this point we will move into the first prong of our two-tiered paradigm (the intersection of free speech and social networking sites): issues of schools and free speech. Although some 50 cases have approached this issue, four have most clearly laid out the boundaries of this discussion.
Expanding the boundaries. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). As far back as 1943, in West Virginia State Board of Education v. Barnett, the Supreme Court addressed the issue of expression in public schools. Tinker, however, was the first time the Court faced the issue of “pure speech” (p. 508).
In 1965 public support for the war in Vietnam was wavering. As a sign of protest towards the war John F. Tinker, age 15, his sister Mary Beth Tinker, age 13, sister Hope Tinker, age 11, brother Paul Tinker, age 8, and a family friend, Christopher Eckhardt, age 16, wore black arm-bands to school. The action was in contravention to a hastily passed school policy prohibiting the wearing of armbands. The students were asked to remove the armbands, and when they refused, they were suspended.
|Table 1. Cases containing education and freedom of expression terms|
|Freedom of Expression||214|
|Junior High School||35|
|“Freedom of Expression” and “High School”||33|
|“Freedom of Expression” and “Secondary School”||13|
|“Freedom of Expression” and “Junior High School”||4|
|“Freedom of Expression” and “Middle School”||0|
The case reached the Supreme Court in November 1968, and the Court issued its opinion in February 1969. The Court noted that in wearing the armbands the students had not interfered with normal school operations, and that other students had worn buttons and symbols representing a variety of social and political activities and causes, including “the Iron Cross, traditionally a symbol of Nazism” (p. 510).
Because there was no disruption of the school day, nor was there any evidence there would be disruption, the Court ruled the students should not have been suspended. Then, using a phrase that has almost taken on a life of its own, Justice Abe Fortas wrote, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years” (p. 506).
In summary, the Court held that unless the school could show either an imminent likelihood of serious disruption, or actual serious disruption, symbolic speech by students was protected under the First and Fourteenth Amendments to the U.S. Constitution.
Limits on Indecent Expression. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Matthew Fraser, a high school senior, was apparently on the short list for high school graduation speakers when he delivered an election campaign speech consisting almost entirely of extended sexual metaphors and innuendos, and ran afoul of his school’s “disruptive conduct” rule.” His speech may have been clever, but it led to the beginning of an erosion of the freedoms outlined in Tinker.
In April 1983, Fraser delivered a speech in support of the candidacy of friend and student council nominee Jeff Kuhlman. The speech was part of a civic engagement project attended by some 600 students from Bethel High School, Pierce County, Washington.
The short speech, in its entirety, reads:
I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most… of all, his belief in you, the students of Bethel, is firm.”
Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds.”
Jeff is a man who will go to the very end — even the climax, for each and every one of you.”
So vote for Jeff for A.S.B. vice-president — he’ll never come [long pause] between you and the best our high school can be. (p. 687)
Fraser had shown the speech to several teachers, and at least two said it was “inappropriate.” During the speech itself, “Some students hooted and yelled; some by gestures graphically simulated the sexual activities pointedly alluded to in respondent’s speech. Other students appeared to be bewildered and embarrassed by the speech.” (p. 678)
Fraser was told the speech had violated a school disciplinary rule which stated, “Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.” As a result he was given a three day suspension and he was removed from consideration as a graduation speaker. He served two days of the suspension and was later allowed to give a speech at the school’s graduation exercises.
Fraser brought suit, claiming among other things, that his punishment violated his First Amendment rights. Both the district court and appellate court ruled in favor of the student. The U.S. Supreme Court, on the other hand, disagreed.
In distinguishing this case from Tinker, the court said that students’ speech rights are not co-extensive with adult political speech, and that [I] t is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse…. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions…. The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board. (p. 683)
Here the Court applied what is known as the “time, place, manner” test for school speech. Outside the school, the speech would have been protected, particularly if it could be shown it was, in fact a political speech. However, because the language used (not the political intent, but the words actually used) violated school policy, it could be enjoined.
There was no doubt Fraser’s speech was was offensive and indecent. But what about speech that is merely inappropriate? What are the rules? Again, we turn to the Supreme Court.
Limits on Inappropriate Expression. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). If we combine Tinker and Fraser we could conclude that so long as student speech is not “too” offensive and is not “too” indecent, it is protected. Speech that is obviously offensive and indecent is seen as incompatible with the basic mission of high schools: education in an environment free from distractions. But what if the expression is neither offensive nor indecent, but rather “inappropriate” in the mind of school officials? That was the issue in Hazelwood.
In May 1983, students in a journalism class at Hazelwood East High School in St. Louis County, Missouri, prepared the school year’s final edition of Spectrum. The paper had a circulation of 4,500, and was distributed in both the school and the local community. There was no question that the paper was under the ultimate control of school officials, although which official was open to question: the classroom teacher or school administration. The paper was part of a class, and a sizeable portion of the paper’s funding was provided by the local school board. The usual policy was for the newspaper advisor, the classroom teacher, to submit the paper to the school principal for review before publication.
This particular six-page issue contained two stories the principal found objectionable. One dealt with the impact of divorce on students in the school. The other described three students’ experiences with pregnancy. Because there was no time to remove the two stories and rearrange the remaining material the principal chose to remove the two pages containing the offending material.
The students then made photocopies of the excised pages and distributed them throughout the school. They also sought injunctive relief in federal district court.
At trial in federal district court, the judge said the school principal was justified in removing the material. The court of appeals disagreed and said:
Because Spectrum is a member of the press and especially because Spectrum is the sole press of the student body, Spectrum has a responsibility to that student body to be fair and unbiased in reporting, to point out injustice and, thereby, guard student freedoms, and to uphold a high level of journalistic excellence. This may, at times, cause Spectrum to be unpopular with some. Spectrum is not printed to be popular. Spectrum is printed to inform, entertain, guide and serve the student body-no more, and hopefully, no less[.] (Kuhlmeier v. Hazelwood School District, 1986, p. 1373)
The United States Supreme Court, however, reversed the court of appeals, and said that student press rights are not coextensive with those of adults, and since the school paper was controlled by the school administration, the administration had final authority over what could or could not be published.
Limits on Out-of-School Expression. Morse v. Frederic, 127 S.Ct. 2618 (2007). So far court decisions had placed limits on what students may do or say inside the school building, a fairly constrained area. But what happens when the student moves outside the building itself, yet is still involved in a school-sponsored activity?
In January 2002, the Olympic Torch was making its way through Juneau, Alaska, on its way to the Winter Olympics in Salt Lake City, Utah. Persons carrying the torch were scheduled to run along the street in front of Juneau-Douglas High School, and the school principal, Deborah Morse, decided to allow students and staff to leave the school building proper and watch the event from either side of the street.
As the torch passed by, student Joseph Frederick and his friends unfurled a large banner with the words “BONG HiTS [sic] 4 JESUS” clearly visible. Morse told the students to take the banner down, and all of the students except Frederick complied. He was subsequently suspended for 10 days for violating Juneau School Board Policy 5520, which states, “The Board specifically prohibits any assembly or public expression that … advocates the use of substances that are illegal to minors…. Disorderly students will be disciplined in accordance with law and Board policy.” (1998) Frederick was also accused of violating a board policy regarding conduct at school-sponsored activities: “Pupils who participate in approved social events and class trips are subject to district rules for student conduct; infractions of those rules will be subject to discipline in the same manner as are infractions of rules during the regular school program.” Juneau School District, 1985).
Frederick sued in Federal District Court, which ruled in favor of the school. The Ninth Circuit Court of Appeals reversed and the school subsequently appealed to the United States Supreme Court, which reversed the appellate court, thus ruling against Frederick and in favor of the school.
In his narrow 5-4 decision, Chief Justice John Roberts conceded the conflict between Tinker on the one hand, and Fraser and Hazelwood on the other: students do indeed have rights, but these rights are limited because of the special relationship schools have with their students. This responsibility is even more pronounced when the message being delivered seems to promote drug use:
Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). At the same time, we have held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), and that the rights of students “must be ‘applied in light of the special characteristics of the school environment.’ “Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Tinker, supra, at 506, 89 S.Ct. 733). Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. (p. 2622).
So what can we conclude: student speech and expression is protected on school property, unless that speech and expression is disruptive to normal school operations or is incompatible with the normal school “message.”
If only it were that easy.
Enter the Internet
I was giving a university tour to a small family group that included a mother, father, teenager (a prospective student) and a six-year-old. I took them through classroom buildings, the library, labs and the student union. At the end of the tour everyone seemed satisfied. Everyone except the youngest member of the group who ask, “But where is the university?”
One could just as well ask, “But where is the Internet?” We can find the hardware fairly easily. We can see the content, at least when it is displayed on the hardware. But the actual Internet? As Gertrude Stein is reported to have said, “There’s no there there.”
Current Internet law, as it relates directly to school operations, is currently in a state of flux. Numerous portions of numerous federal laws dealing with children, schools and the Internet have been struck down, usually on vagueness or overbreadth grounds.
Although this book deals primarily with adolescent use of the Internet, it is instructive to quickly review how the courts have dealt with laws that have attempted to protect children who are using the Internet and that have attempted to regulate Internet conduct in schools and libraries.
Communications Decency Act (CDA), 47 USC § 223. Overturned in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
The CDA was designed to protect minors from harmful material on the Internet. The Court, however, found the restrictions were “content-based,” and would deny access by adults to material that would be inappropriate for children, thus violating the First Amendment.
Child Pornography Prevention Act (CPPA), 18 USC §§ 2256(8)(B) and 2256(8)(D) (1996). Overturned in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
The CPPA sought to expand existing child pornography laws by prohibiting sexually-related material that “appear[ed] to be of a minor,” but were, in fact, not minors. The law also dealt with the advertising and distribution of such material. The Court ruled that the law, as enacted, would also prohibit access by adults to material that would be considered inappropriate for children. In addition, because the law used the phrases “appears to be” and “conveys the impression” the Court said the law was vague and overbroad, and could be used to ban such plays such as Romeo and Juliet, in which the main characters are young teenagers.
Child On-Line Protection Act (COPA), 47 USC § 231 (1998). Overturned in Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004).
In response to the Court’s ruling in Reno, Congress passed the Child Online Protection Act, designed to prevent minors from accessing pornographic material online. The Act specifically required that a credit card or “any other reasonable measures that are feasible under available technology.” be used to access such material (§ 231(c)(1)). The American Civil Liberties Union and several on-line publishers immediately sued to prevent enforcement of the act. The Court ruled that Congress had not shown that credit card use would not prevent access by minors to pornographic material, and that blocking and filtering software was a less restrictive means of control.
Children’s Internet Protection Act (CIPA), 17 USC § 1701 et seq (2000). Upheld in United States v. American Library Association, 539 U.S. 194 (2003).
In 2000, Congress passed the Children’s Internet Protection Act, which required libraries that receive federal funds to install blocking software in order to prevent access by minors to certain kinds of Internet material. The American Library Association challenged the law, which was upheld by the Supreme Court.
The Court said that libraries have always been able to decide what materials to provide, and that deciding which Internet access to provide was analogous to deciding which books to purchase. Because filtering software can be turned on and off, the Court said, material that is inappropriate for children would still be accessible by adults.
Children’s On-Line Privacy Protection Act (COPPA), 15 USC § 6501-6506 (1998). Not to be confused with COPA, this act applies to websites that collect information from children under 13 years old. The Act itself has not be challenged, and it has been used by the Federal Trade Commission against numerous companies that appeal to children, and has successfully levied fines up to $1-million for repeated violations of the Act’s provisions.
As with so much of First Amendment law, the Court has attempted to balance freedom to expression with the compelling state interest in protecting children from harm. Into this mix we must also put material that is inappropriate for children, but not for adults. If, somehow, Congress could craft a law that allowed access for adults, but blocked access by children, such a law might stand up to judicial scrutiny. The Children’s Internet Protection Act (supra) comes close, but introduces yet another variable: blocking and filtering software.
Enter the Courts
Among the almost mythic stories about school behavior are the ones where the student gets caught passing a note in class. Even worse are the intercepted notes that make comments about the teacher. Students have also carved comments on desktops and surreptitiously written notes on the chalkboard (now, the marker board). And they have almost always gotten caught, and almost assuredly, the punishment was swift and certain.
Today, however, the Internet has made worldwide distribution of offensive messages easier than ever. It is also apparent many youth think the anonymity of the Internet means they won’t get caught. But quite the contrary is true: it is easier than ever to catch the perpetrators. “In fact, the long arm of a school official all-too-often reaches far off campus into private homes to punish students who create–on their own time and with their own computers–Web sites that assail administrators and tweak teachers.” (Calvert, 2001)
What happens, then, if we link concerns about student expressive conduct (supra) and student Internet use? Courts have conceded that the Internet has made the issue more difficult. Said the Pennsylvania Supreme Court, “the advent of the Internet has complicated analysis of restrictions on speech.” (J.S. v. Bethlehem School District, 2002, p. 863) Although the United States Supreme Court has not yet addressed this issue of student speech vis-à-vis the Internet, lower courts have been more amenable to free speech and the dissemination of ideas.
Beussink ex rel. Beussink v. Woodland R-IV School District, 30 F.Supp. 2d 1175 (E.D. Mo. 1998).
Using his home computer, on his own time, Brandon Beussink created a web page containing vulgar statements about Woodland High School, teachers, the principal and the school’s own homepage. There was no indication the page caused any disruption at the school, beyond upset feelings on the part of the principal and some teachers.
Nevertheless Beussink was suspended for 10 days, which caused him to fail all of his second semester junior year classes.
Beussink sought an injunction prohibiting enforcement of the suspension, which the district judge in the case granted. In granting the injunction the judge wrote that “Beussink’s homepage did not materially and substantially interfere with school discipline.” (at 1182) The judge noted that speech that interferes with normal school operations may be prohibited, but that unpopular speech, that did not interfere, was protected.
Once again, the Court applied a disruption test, rather than an offensiveness test to determine whether the First Amendment or school rules would trump.
Boucher v. School Board of the School District of Greenfield, 134 F.3d 821 (7th Cir. 1998)
But what about the potential for disruption? Other First Amendment cases, most notably Brandenburg v. Ohio (1969), have distinguished between “mere advocacy” and “imminent lawless action.” There is still a kind of calculus, however, which balances the “gravity of the evil,” (p. 453) the nature of the advocacy and the likelihood of the action taking place. It was at this confluence that high school student Justin J. Boucher got into trouble.
Writing under the pseudonym “Sacco and Vanzetti,” Boucher penned an article for The Last, an underground (non-school sponsored) newspaper, in which he provided profanity-laced instructions detailing how to hack into the school’s computers. School officials quickly determined Boucher was the author of the article, and in July 1997 he was expelled from school.
Boucher claimed his First Amendment rights were being violated, and a federal district court agreed, ordering the school not to enforce the expulsion. The school board appealed, and the Seventh Circuit Court of Appeals upheld the expulsion.
The court gave a passing nod to Tinker, noting students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but then quickly returned to the Hazelwood standard of substantial interference with the school. The court ruled that (1) allowing the injunction to stand would undermine general school authority, and (2) there was the potential for serious disruption of the school’s computer system and thus school operations.
Interestingly, the circuit court judge suggested to Boucher a way that might have salvaged the article: “Boucher does not contend that the article was intended merely as some sort of parody of anarchist high school hackers a defense that might have been more promising than the ones offered” (p. 828. Italics in original. Footnotes omitted).
Emmett v. Kent School District No. 415, 92 F.Supp 2d 1088 (W.D. Wash 2000).
So how serious must the perceived threat be before it triggers a response from school officials? The judge in Boucher mentioned “parody,” and the Supreme Court has ruled that parody is a protected form of speech in both privacy (Hustler Magazine v. Falwell, 1988) and copyright (Campbell v. Acuff-Rose, 1994) cases. But what about parody that appears to pose a threat?
That was the gist of Emmett, and the background was so simple it can easily be repeated from the district court decision:
Plaintiff, Nick Emmett, is an eighteen-year-old senior at Kentlake High School. He has a grade point average of 3.95, is co-captain of the basketball team, and has no disciplinary history. On February 13, 2000, he posted a web page on the Internet that was created from his home without using school resources or time. The web page was entitled [sic] the “Unofficial Kentlake High Home Page,” and included disclaimers warning a visitor that the site was not sponsored by the school, and for entertainment purposes only. It contained some commentary on the school administration and faculty. Two aspects of the site are at issue. The page posted mock “obituaries” of at least two of the Plaintiff’s friends. The obituaries were written tongue-in-cheek, inspired, apparently, by a creative writing class last year in which students were assigned to write their own obituary. The mock obituaries became a topic of discussion at the high school among students, faculty, and administrators. In addition, the Plaintiff allowed visitors to the web site to vote on who would “die” next—that is, who would be the subject of the next mock obituary.
On Wednesday, February 16, an evening television news story characterized Plaintiff’s web site as featuring a “hit list” of people to be killed, although the words “hit list” appear nowhere on the web site. That night, Plaintiff removed his site from the Internet. The next day, he was summoned to the school principal’s office, and eventually told that he was placed on emergency expulsion for intimidation, harassment, disruption to the educational process, and violation of Kent School District copyright (p. 1089).
Were there overt threats on the web page, and if so, how serious should they have been taken? The court, while perhaps not seeing the humor in the pages, nevertheless saw a minimal threat:
Web sites can be an early indication of a student’s violent inclinations, and can spread those beliefs quickly to like-minded or susceptible people. The defendant, however, has presented no evidence that the mock obituaries and voting on this web site were intended to threaten anyone, did actually threaten anyone, or manifested any violent tendencies whatsoever. (p. 1090)
Thus the Emmett court said that if there is no indication the student intends to cause harm, and the school cannot reasonably show any potential for harm, then the First Amendment trumps school fears.
Killion v. Franklin Regional School District, 136 F. Supp. 2d 446 (W.D. Pa. 2001).
So far all of the cases have dealt with Internet messages that are somehow connected with the school. But what about electronic speech that refers to a teacher, yet is not delivered to the school?
In March 1999 high school student Zachariah Paul created an e-mail, at home, making comments that teachers considered “rude, abusive and demeaning” (p. 455) and “lewd and obscene” (p. 456). Although Paul sent the e-mail, he did not distribute it to his school; other students did.
The school suspended Paul, and his parent Joanne Killion (hence the name on the case) sued, claiming a First Amendment violation.
After an extensive review of the history of school disruption and free speech cases, the Court said (1) the e-mail had not caused disruption at the school and (2) even if it had, Paul was not the proper person to sue, because he had not sent or delivered the missive to the school itself.
J.S. v. Bethlehem School District, 807 A.2d 847 (Pa. 2002).
At what point, we can ask, does the “potential” for harm and disruption move into action? That was the issue addressed by the Pennsylvania Supreme Court in 2002. The court’s opinion provides a graphic description of the web page in question:
The site was entitled [sic] “Teacher Sux.” It consisted of a number of web pages that made derogatory, profane, offensive and threatening comments, primarily about the student’s algebra teacher, Mrs. Kathleen Fulmer and Nitschmann Middle School principal, Mr. A. Thomas Kartsotis. The comments took the form of written words, pictures, animation, and sound clips.
Within the web site were a number of web pages. As noted above, certain of the web pages made reference to Principal Kartsotis. Among other pages was a web page with the greeting “Welcome to Kartsotis Sux.” Another web page indicated, in profane terms, that Mr. Kartsotis engaged in sexual relations with a Mrs. Derrico, a principal from another school, Asa Packer School.
The web site also contained web pages dedicated to Mrs. Fulmer. One page was entitled [sic] “Why Fulmer Should be Fired.” This page set forth, again in degrading terms, that because of her physique and her disposition, Mrs. Fulmer should be terminated from her employment. Another animated web page contained a picture of Mrs. Fulmer with images from the cartoon “South Park” with the statement “That’s right Kyle [a South Park character]. She’s a bigger b than your mom.” [Footnote 3. For purposes of this opinion, blanks will be used rather than the actual profane words that were spelled out in the web site.]
Yet another web page morphed a picture of Mrs. Fulmer’s face into that of Adolph Hitler and stated “The new Fulmer Hitler movie. The similarities astound me.” Furthermore, there was a hand-drawn picture of Mrs. Fulmer in a witch’s costume. There was also a page, with sound, that stated “Mrs. Fulmer Is a B , In D Minor.” Finally, along with the criticism of Mrs. Fulmer, a web page provided answers for certain math lessons.
The most striking web page regarding Mrs. Fulmer, however, was captioned, “Why Should She Die?” Immediately below this heading, the page requested the reader to “Take a look at the diagram and the reasons I gave, then give me $20 to help pay for the hitman.” The diagram consisted of a photograph of Mrs. Fulmer with various physical attributes highlighted to attract the viewers’ attention. [Footnote 4. Lines from the photograph of Mrs. Fulmer connected to four statements regarding the author’s reasons why Mrs. Fulmer should “die.” The statements were: (1) “Is it a rug, or God’s Mistake?” (2) “Puke Green Eyes” (3) “Zit!” and (4) “Hideous smile.”] Below the statement questioning why Mrs. Fulmer should die, the page offered “Some Words from the writer” and listed 136 times “F You Mrs. Fulmer. You Are A B . You Are A Stupid B .” Another page set forth a diminutive drawing of Mrs. Fulmer with her head cut off and blood dripping from her neck. (p. 851)
The web page provoked considerable discussion in the school, and, perhaps more importantly, resulted in serious mental and emotional harm to Mrs. Fulmer, necessitating psychotropic medicine and a medical leave of absence, which in turn resulted in substitute teachers being used in her classes.
School officials claimed the web site constituted a threat against Mrs. Fulmer, and in general disrupted normal school operations; as a result J.S. was issued a three-day suspension.
The case made its way to the Pennsylvania Supreme Court, which ruled that although the site was not a “true threat” (p. 860) it did cause substantial disruption:
- Mrs. Fulmer suffered severe emotional injuries and had to take a medical leave of absence.
- Because of Mrs. Fulmer’s absence, substitute teachers had to cover her classes, impacting students.
- Some students became anxious for their personal safety.
- Parents expressed concern about the safety of the school and about the use of substitute teachers.
In sum, the web site created disorder and significantly and adversely impacted the delivery of instruction. Indeed, it was specifically aimed at this particular school district and seemed designed to create precisely this sort of upheaval. Based upon these facts, we are satisfied that the School District has demonstrated that J.S.’s web site created an actual and substantial interference with the work of the school to a magnitude that satisfies the requirements of Tinker. Thus, for the reasons stated above, we find that the School District’s disciplinary action taken against J.S. did not violate his First Amendment right to freedom of speech. (p. 675)
So where does that leave us? Quite frankly, on rather boggy ground, with only treacherous pathways through the mire. In general, the First Amendment protects student expression, but the nature of the expression, its impact and where the message originates also must be considered.
Whither Social Networking?
Given what we know about the law, students and free expression, including expression over the Internet, how do social networking sites such as Second Life fit into the equation? What are the rules regarding the kind of expressions the court has already dealt with when the expression occurs on MySpace, FaceBook, Second Life, or any of the myriad of other social networking sites?
The easy answer appears to be, “there is no connection.” The courts have not dealt with this kind of issue. That may be facially true, but what the courts often do with a new issue is rule by analogy: the court will look at the similarities and differences between old and new issues, will next look at past rulings, and will then determine how best to apply the old rules (called precedents in legal parlance) to the new situation.
Layshock v. Hermitage School District, 496 F.Supp.2d 587 (W.D. Pa. 2007).
In terms of the application of old rules to news technologies, Layshock simply went back to basics, and applied the Tinker rule concerning disruption to material posted on the social networking site MySpace.
In late December 2005, Justin Layshock created what he called a “parody” MySpace profile of his high school principal. He created the parody after school hours, using his grandmother’s computer. The site contained vulgar comments, generally related to the word “big.” After the profile was posted, several other students also posted parody sites about the principal.
As early as October 2005 the school had attempted to block access to MySpace on school computers. This effort, however, was unsuccessful, and several students and teachers apparently accessed the parody.
Layshock was subsequently given a 10-day suspension and was told he would not be allowed to participate in any school activities, or be allowed to attend his graduation the following June. The reason for the disciplinary action, according to the school, was that Layshock had caused substantial disruption to school operations, and had been disrespectful to school officials.
In terms of disruption, there was some effort made by the school to block access to MySpace, and student computer use at the school was restricted for approximately four days. Nevertheless, the court ruled the disruption was not substantial enough to warrant punishment.
Requa v. Kent School Dist. No. 415, 492 F.Supp.2d 1272, (W.D.Wash., 2007).
A different social network posting, however, using different reasoning, elicited a different response from the court.
In June 2006, Gregory Requa posted on You-Tube a video of his English teacher. The video included scenes surreptitiously shot in her class, as well as various production elements including music, text and slow motion scenes. The video included text comments on the teacher’s personal hygiene, as well as video of cluttered work areas, another student making “rabbit ears” and “pelvic thrusts” behind the teacher, and scenes of the teacher’s buttocks as she walked away from the camera and bent over.
School officials were never able to conclusively determine who actually shot, edited and posted the video, but despite Requa’s denials, several students identified him as being involved in the production process, and perhaps in the actual shooting. Requa admitted posting a link on his home page to the video, but he also averred he removed the link after a local television station aired the production as part of a story about similar videos on the social network. As of September 2008, however, the video was still available on YouTube at http://www.youtube.com/watch?v=aHIJMWr1Zy0
Requa was given a 40 day suspension, with 20 days being remitted upon completion of a research paper. Other students also received similar suspensions. After exhausting his administrative remedies, Requa took his case to Federal District Court, claiming his First Amendment and due process rights were being violated.
Given a choice, Federal courts would rather not deal with First Amendment issues, if there are other grounds for upholding a lower judicial or administrative ruling. In this instance the court said the video was “lewd and offensive and devoid of political or critical content” (at 1279) and thus did not reach First Amendment protection.
Instead, the court denied the plaintiff’s request for a temporary restraining order on the ground that the video constituted sexual harassment (and thus caused significant disruption) and that the secret filming violated explicit school regulations concerning the use of audio and video recorders.
Spanierman v. Hughes, — F.Supp.2d —-, 2008 WL 4224483 (D. Conn., 2008).
Up to this point all of the cases cited have involved student activities on web pages or in social networking sites, and generally have involved student activities that make teachers and administrators uncomfortable. But what happens when a teacher’s on-line activities violate school policy or lead to distress on the part of students? Those were the issues in our last case.
Jeffrey Spanierman was a newly-hired English teacher at Emmett O’Brien High School in Ansonia, Connecticut. In the course of his employment he created a MySpace profile, and encouraged his students to use the site to communicate with him. The site contained a picture of Spanierman, pictures of students and “pictures of naked men with what [a school guidance counselor] considered ‘inappropriate comments’ underneath them.” (p. 2) In addition, the site contained conversations with students which the counselor considered “very peer-to-peer like.” (p. 2)
In addition, several students who had accessed the page said it made them uncomfortable. Spanierman was asked to remove the page, which he did. He almost immediately, however, launched a new page under a different name, but with almost exactly the same content. Following an administrative hearing, Spanierman was placed on administrative leave, and later his contract for the next school year was not renewed. He then filed suit in Federal District Court, claiming his due process and First Amendment rights had been violated. The defendants responded by filing a motion for summary judgment, which the court granted.
The court spent most of its decision discussing Spanierman’s due process claim. The court found that all administrative procedures had been followed, and that he was not “terminated,” but rather his contract simply not renewed. The court also determined that his speech was generally not protected as dealing with public policy, but rather was private speech that was, in fact, inappropriate in a teacher-student relationship.
In light of the potential for abuse, and in an effort to maintain appropriate student-teacher relationships, several states, are now considering legislation that will place an outright ban on teacher-student relationships via social networking sites. Other school districts allow such contacts, but only through district-sponsored sites. (Simon, 2008)
Sites such as Second Life, of course, have the potential for adding another layer of virtual reality to these problems. A student can create an almost limitless collection of avatars; enough to populate an entire classroom or school. These avatars can represent the student, teachers, administrators or other students. They can be made to do and say whatever the “creator” wants. They can have an almost limitless array of body types, parts and physical attributes.
Given that adolescents can, as we have seen, be extremely cruel in their verbal descriptions of faculty and staff, sites such as Second Life present new issues of false light invasion of privacy, the traditional elements of which are:
…that creates a false impression…
…that is highly offensive to a reasonable person.
It does not take much imagination to see how students in the previously cited court decisions could turn their verbal descriptions into visual depictions. And as other decisions showed, the responsible party will be the student, not the publisher/owner of the virtual world.
Acceptable Use Policies
So what can school administrators do to protect themselves from lawsuits filed by aggrieved parents and students? The quick answer is: not much. However, there are some precautions that can show good-faith on the part of the schools in protecting students’ free speech rights, as well as letting students know what kinds of behaviors are acceptable and which are not. These precautions are found in Acceptable Use Policies (AUP).
An AUP has three purposes: First, it allows parents to grant (or not grant) their children Internet access. Second, it provides guidelines for what is, or is not, appropriate when students do access school-provided Internet resources. Third, it tells students what sanctions will be imposed for violating these rules. But note, the AUP may not impose a blanket prohibition on student expression. The rules concerning disruption, appropriateness, control and free speech still apply.
Perhaps the best way to craft an AUP is to provide a list of “dos and don’t.” While there may be a tendency to writer an all-inclusive list, administrators should resist this temptation. In today’s rapidly-changing electronic environment such a list may quickly become outdated. In addition, it is impossible to include all possible behaviors, so in a questionable situation will boil down to asking, “If it isn’t in the policy is it allowed or prohibited?” And those are the kinds of questions that lead to lawsuits.
Thus the AUP should be general enough to cover a majority of situations that may arise. Of course, if there are “dos and don’ts,” then there must be sanctions imposed for violations of the policy. Remember, most students will abide by the rules, and most of the time students who violate the rules do not do so deliberately. Thus it is a small number of students who will be the targets of sanctions.
And what should the sanctions be? The general rule is to make the punishment fit the crime. The most prevalent sanction is to deny the student Internet privileges at the school. More flagrant violations could lead to suspension. But whatever reward/punishment scheme is adopted, it must be applied fairly and consistently.
The written policy must also include provisions for due process and should be signed by the student, the student’s parents, and a representative of the school (or district). The Virginia Department of Education has an excellent electronic publication detailing how to create an acceptable use policy, and includes examples from other states, as well as templates for creating an Acceptable Use Policy.
Fortunately a number of other schools have already created Acceptable Use Policies. A simple Internet search will yield hundreds, if not thousands of such policies. Here are a few sites to get you started:
Moving into the Future?
At this point you may be saying to yourself, “Can any good come out of this?” Yes, there are some positive benefits to social networking sites, but rather than throw their hands up in despair, teachers and administrators should remember that it was only a few years ago that computers were introduced into the classroom, and even fewer years when the Internet arrived. And we all survived, and in many case thrived and found new and exciting ways to use this new technology. Now it may be time for the next step, and integrate social networking sites into the curriculum.
Some schools have gone so far as to build virtual campuses where students and faculty can gather for classes and casual interactions. Of course, as noted previously, faculty must be extremely careful not to overstep the bounds of propriety and appropriate student-teacher relationships.
A safer option is for the school to merely establish a presence in one of the virtual worlds, and simply provide information about the school and school activities. But is it also possible to teach in a virtual world? Some colleges and universities are indeed experimenting with virtual classrooms, as an extension of synchronous interactions. Indeed it is not much of a leap from synchronous communication via a keyboard, to establishing a more elaborate virtual classroom complete with demonstrations and avatars asking and answering questions. Most of these experiences, however, provide supplemental materials rather then replacing the brick-and-mortar school. Second Life in particular allows “citizens” to upload content that can be used as classroom material.
For those interested in pursuing the application of virtual worlds to the classroom, here are some web sites that may be useful:
The United States Supreme Court has yet to deal with adolescents and social networking sites such as Second Life. However, using the concept of “reasoning from analogy” we can surmise what the new rules for the ever-expanding CyberVillage might look like.
- Speech that occurs in school and deals with public policy and does not cause substantial disruption is almost certainly protected.
- Expression that occur in the school building itself, or as part of an officially-sanctioned off-school-property function, whether part of the curriculum or not, and is disruptive or runs counter to the school’s basic educational mission, is not protected.
- Speech that is “merely” offensive, and is created off-campus, is probably protected, even if the message is later distributed in the school.
- Expression that causes or has the potential to cause serious disruption, or that can be considered a “true threat,” is not protected.
Given the current legal climate, it is critical that schools develop written policies regarding the role of the school in education for civility, free speech, disruption, threats and proper computer use, and how computer use relates to these areas.