A review of: Aaron Caplan's "Public School Discipline for Creating Uncensored Anonymous Internet Forums," Williamette Law Review, Winter 2003, v39, n1.
Facilitating the anonymous speech of others has always been a hazardous endeavor. In the 18th century, publisher John Peter Zenger sat in prison for eight months for printing and disseminating some unsigned articles that attacked an unpopular governor in his newspaper, New York Weekly Journal. Eventually, a sympathetic jury found Zenger not guilty, and he went on to become a veritable folk hero. As Aaron Caplan, a staff attorney for the American Civil Liberties Union/Washington, shows in his very timely law review article, Zenger's 21st century Internet successors have also suffered punishment, both for hosting forums and for publishing their own ideas online.
Caplan's article starts by describing the case of three honor-roll, college-bound, suburban high school students (known collectively as The Phantom) who created a Web site where their classmates could post messages. Discussions ranged from schoolwork to politics to gossip to eating disorders to sex, and were often conducted in "locker-room" language. Deeming the Web site a distraction from schoolwork, school administrators persuaded the site's Internet host to shut it down, but "the Phantom" simply launched a second one with a different ISP, triumphantly claiming in their masthead: "We're back and better than ever despite the man's attempts to keep us down!"
As the administration scrambled about, trying to take down the new site, some school officials began to observe the site's chat rooms more closely. Over Halloween weekend, an anonymous user twice logged on, announced that the following Monday would be "doomsday," and warned the other participants not to go to school. The administration promptly notified all parents that school would be closed due to a "very serious" threat of violence.
When the primary member of the Phantom learned about this threat, he contacted the principal to offer his help, posted a denunciation of the threat, and – on his own volition – took down the site. The author of the threat, meanwhile, stepped forward to apologize. But that didn't stop the principal from proposing to suspend the webmaster for three days and fine him for the expenses caused by the day of school closure, citing the general school rule against any bad behavior that substantially disrupts the educational process. As Caplan notes, the school believed that operating an uncensored marketplace of ideas online was grounds for punishment.
Fortunately, the lead Phantom's appeal to the school board succeeded; the board ruled that discipline was not necessary "in light of the students' personalities, history, and likely future behavior." But the case (in which Caplan acted as attorney for the Phantom) raises the important question: should school administrators be allowed to punish students for constructing uncensored online forums for student speech?
One case that lawyers and judges often cite when considering public school discipline based on student speech is Tinker v. Des Moines Independent Community School District, which concerned a group of students who were suspended for wearing black armbands to school in protest of the Vietnam War. After famously declaring: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the Supreme Court ruled that discipline for students on-campus speech is permissible only if the speech would substantially disrupt their fellow students' work, or if it constitutes an "invasion of the rights of others."1
Yet, as Caplan explains, not all speech uttered by public school students should be governed by the "Tinker" standard – in part because "off-campus speech will rarely if ever pose a genuine threat of disruption."2 He notes that in the case of most student Web sites (like the Phantom's) the disruption – if any – comes about when students gossip about the site, or when the staff gets upset about it. Moreover, as the Supreme Court ruled in Reno v. American Civil Liberties Union, the Internet is a public forum for open discourse and so has the same First Amendment protection as speech in books, newspapers, streets, and parks.3
Caplan observes that schools generally offer three main rationales for the power to punish students for Internet speech: the student's speech is visible from school, is about school, or has an effect on school. Fortunately for students, this reasoning hasn't generally held up in court. One example is Beussink v. Woodland R-IV School District, in which a student used vulgar language to criticize his teachers and principal on a Web site he created at home. The court found that while the teacher and principal were "upset" by the site, the student could not be held responsible for any real disruption, and it enjoined the school "from restricting Beussink's use of his home computer."4
But the student in J.S. v. Bethlehem Area School District wasn't as lucky. Among other things, his site – created entirely off-campus – compared his teacher to Hitler and offered $20 to hire an assassin. The school expelled him from the District and the Pennsylvania Court of Appeals upheld the punishment, reasoning that "courts have allowed school officials to discipline students for conduct occurring off of school premises where it is established that the conduct materially and substantially interferes with the educational process."5
One serious strike against modern-day Zengers and their counterparts who write on their own behalf is the widely believed notion that adolescent Internet use is inherently dangerous. This phenomenon, which Caplan, following sociologists in the field, calls "moral panic," has much historical precedence. The invention of the printing press brought about great fear of the spread of heresy in the 15th century, while horror and crime comic books were widely viewed as the cause of juvenile delinquency in the early 1950s. Moreover, many of these controversial Web sites came about after the Columbine shootings in Littleton, Colorado. Scores of students across the nation have been suspended, expelled, and even criminally charged in the aftermath of that tragedy for such deeds as typing "The End Is Near" on a school computer screen – despite the fact that statistics have shown that schools were growing safer in the 1990s.
As one might expect, the media often exacerbate – if not create – this moral panic. Take, for example, the case of Nick Emmett, a basketball star with a 3.95 grade point average who built a Web site from his home. The site became increasingly popular as he began to post mock obituaries of his friends, as inspired by an assignment in his English class. All was calm until a local TV station did a story about the site and called it a "hit list." The unsavory coverage prompted the principal to suspend Nick for a week on grounds including "intimidation, harassment, and disruption to the educational process."6 The court sided with Nick in the subsequent lawsuit, Emmett v. Kent High School District No. 415, noting that the school presented no evidence that the obituaries were intended as a threat.7
At the turn of the 21st century, student Web sites offered as invaluable a venue for free speech as John Peter Zenger's New York Weekly Journal did in the 18th century. As Caplan points out, sites like the Phantom's allow students to discuss taboo topics without fear of reprisal. Punishing students for off-campus and/or anonymous speech could set a dangerous precedent by silencing the thoughts of youth.
Caplan's article is a valuable summary of the existing case law on students' off-campus Web sites. In all but one of the six cases Caplan discusses, the courts affirmed the students' First Amendment right to create Web sites off school premises, both to express their own views and as forums for the views of others. However, not all online speech is constitutionally protected – especially if the Web site contains threats, defamation, or other speech that can be legally punished or suppressed. In other words, while youth do have First Amendment rights, as thoughtful citizens they also need to be aware of the harm (such as defamation of character) that their speech might cause.
Stephanie Elizondo Griest
The Free Expression Policy Project
March 31, 2003
1. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
2. Caplan, "Public School Discipline," 39 Willamette Law Review at 149.
3. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
4. Beussink v. Woodland R-IV School District, 30 F. Supp.2d 1175, 1182 (E.D. Mo. 1998)
5. J.S. v. Bethlehem Area School District, 757 A.2d 412, 421 (Pa. Commw. Ct. 2000), affirmed, 807 A.2d 847 (Pa. 2002).
6. Caplan, "Public School Discipline," 9 Willamette Law Review at 118.
7. Emmett v. Kent High School District No. 415, 92 F. Supp.2d 1088, 1090 (W.D. Wash. 2001).