This page is part of Benton Foundation's online archive. We've kept some old stuff around for historical purposes.The Digital Beat v.2 no.28, 04/13/2000
The Digital Beat
Vol. 2, No. 29, April 20, 2000
Student Free Speech Rights on the Internet
and the Ghosts of Columbine
By Andy CarvinIntroduction
Laying the Groundwork for Student Free Speech
The Hazelwood Case Redefines Student Speech Rights
Paul Kim: From Honor Student to Online Rabble Rouser
The Case of Brandon Beussink: A First Step Towards Precedence
Punishing Perceived Threats: Nick Emmett and the Online "Hit List"
School Administrators Caught Between a Rock and a Lawsuit
Balancing Appropriate Action with Restraint
This week, schools around the country will undoubtedly pause to recount the tragic, horrifying event that occurred precisely one year ago in Littleton, Colorado. It was there that two students, Eric Harris and Dylan Klebold, ruthlessly gunned down a teacher and 12 fellow classmates at Columbine High School before turning their weapons on themselves.
In the months following Columbine, innumerable parents as well as educational and political leaders demanded a reckoning that would assess the steps necessary to protect our nation's schools. Throughout this process we have witnessed a rigorous debate over handguns; increased pressure for the use of Internet filtering technology in schools and libraries; new demands for improved school security measures; and a call for accountability among teachers, administrators, parents and students to remain vigilant and seek out the warning signs that might precede such an event.
Yet amidst the continuing fallout, one particular debate is only beginning to be addressed at a national level: to what lengths may school administrators go to nip nascent violence in the bud? How fine is the line that separates prudent, pre-emptive disciplinary measures with the student's right of free expression and privacy? If Columbine had happened at any other time in our nation's history, these questions would have undoubtedly been raised. But now that America is in the midst of embracing the promise of an Internet-driven society, the debate of student safety versus student rights has taken a decidedly 21st-century trajectory: Cyberspace.
As may be recalled, in the days immediately following the massacre, there was much public discussion over the fact that Columbine co-conspirator Eric Harris maintained a personal Web site that was rife with violent imagery and conspicuous threats against fellow students. (Additionally, both Harris and Klebold served as webmasters for the school's official Web site.) Authorities were aware of Harris' site prior to the massacre, which led to their questioning of him. Following the massacre, school districts across the country were advised to become more aware of young people's use of the Internet both on campus and off campus. The content of their Web sites, so the argument went, might serve as a useful indicator to the psychological predilections of potential timebombs-in-waiting.
In the wake of the Columbine anniversary, schools administrators continue to be hypersensitive to the activities of students in cyberspace. While many schools have approached their awareness of student-generated online content as part of a greater strategy to assess their students' emotional states, others have apparently actualized their fears by cracking down on less-than-threatening student online activities that occur outside the classroom. In the year that has lapsed since the massacre, the American Civil Liberties Union has received hundreds of complaints from students who were summarily punished for producing Web site content from home that was deemed by school administrators as inappropriate or worrisome.
In Brimfield, Ohio, for example, 11 students were suspended soon after the Columbine massacre for posting insensitive comments to their Goth-themed Web site. The students, who identified with the counter-culture Goth style of wearing black clothes and listening to groups like Marilyn Manson, made sarcastic online comments such as the following: "I wonder how long it'll be before we're not allowed to wear our trenchcoats anymore. You know those screwed up kids in Colorado were wearing them, so that means I will also kill someone, and so will all my friends." In light of Columbine, the school superintendent labeled the students' comments as "obscene" and immediately suspended them from school. In this case, as in the hundreds of others that have been reported across the country, the school district in question has been surprised to find itself in constitutional hot water, for the American judicial system is increasingly siding with young people when it comes students' right of expression on the Internet.
At the same time, Tinker acknowledged situations in which administrative action was appropriate. Students' right of expression would be protected except in cases where that expression "materially disrupts classwork or involves substantial disorder or invasion of the rights of others...." In other words, if a group of students blockaded the entrance to the school library to protest the availability of certain books, the action would be perceived as worthy of an administrative response. Similarly, if a student entered a classroom wearing a t-shirt featuring profanity, it would not be deemed as being within that student's right to free speech. Schools could discipline students for certain forms of expression, but only in those rare cases where their action was a tangible interruption to educational activities.
The turbulent years of the Vietnam War also served to further other precedents that illuminated the free speech rights of students in cases where their speech originated off campus. In Sullivan v. Houston Independent School District, two students sued the district for expelling them on the grounds that they had published an underground newspaper. The newspaper, The Pflashlyte, was severely critical of the school's policies against student free speech. The two students published the newspaper off-campus and distributed it to friends before school in a local park. In its 1969 decision, the Houston U.S. District Court ruled that the district had violated the students' rights by punishing them for speech that occurred outside of school property. "School officials may not judge a student's behavior while he is in his home with his family nor does it seem to this court that they should have jurisdiction over his acts on a public street corner," the court ruled.
A similar case began to take shape in 1970, when two students from Chicago's Lane Technical High School were suspended for disseminating an underground newspaper on campus. Burt Fujishima and Richard Peluso were caught distributing copies of The Cosmic Frog, a self-published newspaper that contained material that was deemed objectionable by the school.
"At that time there was a very, very conservative administration who ran the school with very restrictive rules," said Fujishima, reflecting on the incident 30 years later. "Your hair couldn't touch the top of your ears, if you had belt loops you needed to wear a belt, t-shirts allowed under a sweater only -- violation of any of these rules was subject to immediate discipline."
"The content of the newspaper was one of inquiry, poetry and discourse," Fujishima continued. "We tried not to use profanity and tried to focus our thoughts on an intellectual and philosophical basis. However, we still disagreed with the administration's policies and rules, and therefore were treated as their enemy."
In 1972, a federal appeals court ruled that the school did not have the right to bar Fujishima and Peluso from distributing their underground newspaper on campus. Like the Sullivan case, Fujishima v. Board of Education stated that content produced by students off-campus should be considered protected speech as long as it does not materially interfere with school discipline. It also went one step further by protecting the rights of the student to distribute their ideas on campus without submitting them for prior review by school administrators, because the materials were produced off-campus.
In their 5-3 ruling on the Hazelwood case, the Supreme Court sided with the school district, effectively curtailing much of the freedom outlined previously in the Tinker case. The Court's decision stated that a school could indeed censor student speech in cases when schools could demonstrate a reasonable educational justification for their censorship, and if the student speech was conducted as part of an educational activity -- in this case, the official campus newspaper, which was published as part of a journalism class. Moreover, because the newspaper did not have a longstanding tradition specifically as a "forum for public expression," the school was not bound to air student views freely.
Though the justices did not overturn the Tinker precedent outright, Hazelwood was seen by civil libertarians as a rollback of student rights. At the same time, many educators viewed the decision as a reinforcement of common sense -- student speech rights were simply not identical to the rights of adults in public. Either way, the case provided new limitations on student free speech. However, because the Court ruled that schools could censor content that was created as part of an official educational activity, it left open the argument that student free speech that wasn't connected to official educational activities would still be protected. In other words, as long as students produced content that was not affiliated with a classroom activity and didn't directly disrupt school activities, their rights to produce that content would still be protected.
When the Supreme Court released its Hazelwood decision in 1988, the case effectively became the legal litmus test for controlling campus newspaper content. To many this was seen as having a potential chilling effect, for student newspapers were one of the few public media through which young people could readily share their thoughts and ideas. With the advent of the World Wide Web five years later and the subsequent proliferation of affordable home Internet access, a whole new world of public expression was made available to a generation of restless youth: millions of young people would be free to embrace their inner-pamphleteer, to celebrate their potential as a publisher, a creator, a dissenter. It was only a matter of time before some student paid the price for it.
Using a private Internet account at home, Kim created an "Unofficial Newport High School Home Page" on the World Wide Web. A parody of the numerous school Web sites that were just beginning to germinate throughout the Web, Kim used the site to lampoon the habits and hobbies of his classmates. For example, he poked fun at students for "majoring in football" and being preoccupied with sex. In a collection of Web links entitled "Favorite Subjects of Newport High School Students," Kim prominently listed a category regarding sex, which included hyperlinks to a Playboy centerfold and an article about masturbation. As a precaution against people taking his site too seriously, he repeatedly used language to explain that the site was "unofficial" and intended merely for amusement. Kim also submitted the site to Yahoo, which included the site in its directory of Web links.
In the weeks following the release of Kim's Web site, administrators at Newport High eventually became aware of it. Though they strongly objected to the content, they initially informed him that they would take no action against him. But when the school began to receive criticism from outside parties, Kim was called in by officials and accused of misusing the school's name. Not wanting his tasteless prank to become a detriment to him, Kim decided to remove the site listing from Yahoo and deactivate the homepage altogether.
This action was not enough to satisfy the school principal, Karin Cathey. Cathey concluded that disciplinary measures were necessary, so she proceeded to withdraw her recommendations that were submitted on behalf of Kim to various universities, as well as to withdraw her endorsement of him as a National Merit Scholarship finalist. Kim was only informed of these measures when a college admissions officer telephoned him to inquire about the sudden change. Though Kim was eventually admitted to Columbia University, his application to Harvard was denied, and his $2,000 Merit Scholarship award was revoked. He soon felt it was necessary to take legal action against the school district.
Counseled by attorneys from the ACLU, Paul Kim filed a complaint against the district, charging that the school principal had "acted with reckless disregard of Mr. Kim's rights" of free expression. Citing the Tinker case, the ACLU argued that Paul's actions were protected because they occurred off-campus and did not interfere with educational activities. "High schools certainly may not exercise more control over off-campus behavior than over on-campus conduct, and such control must be based on the standard of substantial interference with the normal operations of the school," they wrote in their complaint to the school district.
The district, recognizing that the precedents of both Tinker and Hazelwood would likely support Kim's case, chose to settle out of court in December 1995. School officials issued a public apology that acknowledged they had violated Paul Kim's First Amendment rights and ignored due process. "The district," the statement noted, "has no right to punish students who, on their own time and with their own resources, exercise their right of free speech on the Internet." The district also reimbursed him the $2,000 scholarship that was lost, and vowed to have Kim reinstated as a National Merit Scholar. Though the out-of-court settlement did not create official legal precedent, it became the first of a series of cases that would reinforce the rights of students to publish Internet content off-campus without fear of administrative retribution.
In a well-publicized ruling that was issued in December 1998, U.S. District Judge Rodney Sippel sided with Beussink and issued an injunction against the school district, ordering it not to hold the suspension against Beussink when calculating grades or school absences, and restricting the district from interfering with Beussink's online publishing. Not unlike the arguments made by Paul Kim's ACLU attorneys, Judge Sippel cited the Tinker case in his reasoning. "Disliking or being upset by the content of a student's speech is not an acceptable justification for limiting student speech under Tinker," he wrote in the injunction.
Judge Sippel went on to write the following:
Beussink was not disciplined on February 17, 1998 because he was disrespectful or disruptive in the classroom. Beussink was disciplined because he expressed an opinion on the Internet which upset Principal Poorman.... Indeed, it is provocative and challenging speech, like Beussink's, which is most in need of the protection of the First Amendment. Popular speech is not likely to provoke censure. It is unpopular speech that invites censure. It is unpopular speech which needs the protection of the First Amendment. The First Amendment was designed for this very purpose. Speech within the school that substantially interferes with school discipline may be limited. Individual student speech which is unpopular but does not substantially interfere with school discipline is entitled to protection.
"We are pleased with the decision," said Deborah Jacobs, Executive Director of the ACLU of Eastern Missouri, following the ruling. "Schools have no right to interfere with what students say on their own time outside of school, whether their thoughts appear in an underground newspaper or on the Internet. What students do with their own time, on their own computers, and with their own intellects is not something schools can punish them for."
Beussink agreed with Jacobs' sentiment. "I think the school should practice what it teaches," he said. "We study history and we study the Constitution, but the school doesn't seem to think that applies to them."
The content at issue, though, was a series of mock "obituaries" regarding several of Emmett's friends. The idea for the obituaries had come from a previous high school creative writing assignment for which students composed their own obituary. Having enjoyed the class assignment, he decided to take the morbid essays public and write additional obituaries for his schoolmates.
Awareness of the Web site and the tongue-in-cheek obituaries soon spread along the Kentlake grapevine. Fellow students as well as teachers praised the site and encouraged more obituary entries. This success led to Emmett's addition of a new feature to his page: online voting for visitors to select which classmate would "die" next and become the subject of a mock obituary.
On February 16, just three days after the site had been created, a local TV station received a tip about the Web site and featured it on the evening news. The news story characterized the site as a "hit list" of people Emmett was planning to kill, even though the site was clearly marked as a parody and contained no reference to the phrase "hit list." Fearing reprisals, Emmett immediately removed the site. The following morning, Emmett was summoned to the school principal's office. The principal expelled him for "intimidation, harassment, disruption to the educational process and violation of Kent School District copyright," though no actual classroom disruption had occurred, nor was their any evidence that students had actually felt threatened.
Like Kim and Beussink before him, Nick Emmett chose to pursue legal action. "I went to court to fight for my rights because I don't think administrators should be able to make unfair punishments," Nick Emmett explained. "I care about school and want to go to class."
On February 23, 2000, U.S. District Court Chief Judge John Coughenour issued a restraining order against the district, arguing that the school had exceeded its boundaries by punishing Emmett for content produced off school grounds. "In the present case," he wrote, "[Emmett's] speech was not at a school assembly... and was not in a school-sponsored newspaper.... It was not produced in connection with any class or school project. Although the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school's supervision or control."
The judge went on to conclude the restraining order with the following comments:
The defendant [i.e., the school district] argues, persuasively, that school administrators are in an acutely difficult position after recent school shootings in Colorado, Oregon and other places. 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. This lack of evidence, combined with the above findings regarding the out-of-school nature of the speech, indicates that the plaintiff [Emmett] has a substantial likelihood of success on the merits of his claim.
Facing a lawsuit from Emmett, the school district eventually settled out of court with the student on March 30. Under the terms of the settlement, the district would rescind its disciplinary measures against Emmett and pay his legal fees.
"The court recognized that school officials do not have authority to punish students for exercising their freedom of speech outside of school. School administrators need to learn that they can't discipline students who create satires on the Internet," said Aaron Caplan, the Washington ACLU staff attorney who represented Emmett.
"In all of these cases, the school administrators must have been aware that they might have been sued for threatening students over the content of their privately created Web sites, so the decision to punish students was a calculated risk," said Bennett Haselton, the 21-year-old founder of Peacefire.org, a civil libertarian group that combats online censorship and champions the free speech rights of young people. "By suing every school that does this, and winning -- which the ACLU has done, and won every such case -- the ACLU is doing the right thing by ensuring that the risk factor favors administrators who don't expel students for making MyHighSchoolSucks.com."
There is little doubt that these cases will not be the last of their kind. School districts are finding themselves in a bind, with increasing pressure to identify potentially violent tendencies in their students. Additionally, administrators must deal with the added pressure of trying to regulate speech on a medium that students understand better than they do. The fact that many students are more adept at utilizing the Internet than most teachers can hardly be denied. A school district's inability to effectively regulate what young people do in cyberspace only adds to the district's concerns, especially in light of Columbine and other recent tragedies.
So what exactly is a school to do when confronted with questionable student Web content? When administrators discover a student Web site inundated with violent imagery, should they simply accept the situation and wash their hands of any responsibility? Certainly not. If administrators discover that a student has published a site that appears to advocate or precipitate violent behavior, they have the option of approaching that student as well as his or her family. In the same way that a school may call in counselors to help a student through more traditional dilemmas, school counselors and district psychologists should do what they can to pinpoint and alleviate the source of that student's anger. In extreme cases where a Web site raises suspicions of illegal activity or imminent violence, there is nothing to prevent a school from contacting local legal authorities to investigate the matter further.
But in terms of the growing number of cases where schools discover a student's Web site that may be considered insulting, inflammatory or even disturbing, administrators must proceed responsibly. Punishing students for objectionable online material they create in their free time simply goes beyond the jurisdiction of a school, as long as there is no direct proof that the material has led directly to the disruption of educational activities. Ignorance of jurisprudence cannot be used as an excuse for heavy-handedness
Educators, no doubt, must be ever vigilant of the possibility of violence in their schools. The memories of Columbine will not fade easily, nor should they. But educators must equally be vigilant in respecting the free speech rights of students. The only way to balance these duties is to become better acquainted with current interpretations of the law. Organizations such as the Student Press Law Center (http:///www.splc.org) provide an excellent range of legal resources that every school administrator -- and every student publisher, for that matter -- should master.
One year after the massacre, the ghosts of Columbine still haunt us. As school districts continue to grapple with student conduct on the Internet, we must persevere against granting Dylan and Eric the last laugh. "What happened in Colorado was tragic but it would be doubly tragic if those who took so many lives in Littleton were allowed to rob children across America of their right to free expression as well," comments Raymond Vasvari, Legal Director for the ACLU.
Or to paraphrase the words of Brandon Beussink: schools should serve to teach the U.S. Constitution rather than violate it.
Tinker v. Des Moines School District -- 393 U.S. 503 (1969)
U.S. Supreme Court ruling
Sullivan v. Houston Independent School District-- 307 F. Supp. 1328 (S.D. Tex. 1969)
U.S. District Court ruling and transcripts of The Pflashlyte
Hazelwood School District v. Kuhlmeier -- 484 U.S. 260 (1988)
U.S. Supreme Court ruling
Beussink v. Woodland R-IV School District
Memorandum and Order by U.S. District Judge Rodney Sippel
Student Press Law Center
American Civil Liberties Union
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